District Court New South Wales Medium Neutral Citation: R v Alenezi [2021] NSWDC 718 Hearing dates: 17 September 2021 Date of orders: 08 October 2021 Decision date: 08 October 2021 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: Sentence of imprisonment on 7 years 6 months with a non-parole period of 5 years Catchwords: CRIME — Sexual offences — Sexual intercourse without consent Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Bugmy v The Queen [2013] HCA 37 DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 Filippou v The Queen [2015] HCA 29 Imbornone v R [2017] NSWCCA 144 Markarian v R [2005] HCA 25 Muldrock v The Queen [2011] HCA 39 Munda v Western Australia [2013] HCA 38 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSCCA 247 The Queen v Olbrich [1999] HCA 54 Veen v R (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14 Category: Sentence Parties: Regina (Crown) Sayer Hamood Jaber Alenezi (offender) Representation: Megan Heywood (Solicitor Advocate) AJ Karim (counsel for the offender) Director of Public Prosecutions (NSW) (Crown) Veronica Abu Zeid Criminal Law (offender) File Number(s): 2019/00344283 Publication restriction: Statutory non-publication order for the name of the victim or of any information that might enable her identity to be ascertained REVISED EX TEMPORE JUDGEMENT INTRODUCTION 1. On Friday September 17, 2021, Sayer Hamood Alenezi appeared for sentence in respect of an offence of sexual intercourse without consent contrary to s 61I Crimes Act 1900. The offence was charged in the following terms: On 27 October 2019 at Woolloomooloo in the State of New South Wales did have sexual intercourse with JU without her consent, knowing that she was not consenting. 1. The sexual intercourse upon which the offender is to be sentenced was penile-vaginal penetration. MAXIMUM PENALTY 1. The maximum penalty for this offence is imprisonment for 14 years. There is a standard non-parole period of seven years specified for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. TIMING OF THE PLEA OF GUILTY 1. Before me the offender adhered to his plea of guilty entered in the Local Court. The Crown concedes that s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999 applies and that the offender is entitled to a discount of 25% to the sentence that would otherwise be imposed upon the synthesis of objective and subjective matters relevant to the assessment of sentence. OFFENCE TO BE TAKEN INTO ACCOUNT 1. The offender asks that when sentence is determined upon the offence to which he pleaded guilty the Court take into account an additional offence charged in identical terms and contrary to the same provision. The offence is particularised in the Form 1. I shall endorse this to certify that I have taken the additional offence into account. The offender confirmed that this was his wish and admitted that he is guilty of the offence. The sexual intercourse upon which the additional charge was referred was his insertion of his penis into the victim's mouth before he embarked upon the penile-vaginal sexual intercourse. 2. He must be sentenced to a term of imprisonment that will provide appropriate punishment for the offence to which he plead guilty, subject to the consideration that must be given to the offence on the Form 1 to be taken into account. I note that having availed of this arrangement the offender has the benefit of not facing separate punishment for the additional offence. 3. I have reviewed the principles enunciated in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The additional offence should impinge upon the sentence for the principal offence requiring an appropriate increase in the sentence that would otherwise be applied to the principal offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the offender's misconduct and the community's entitlement to retribution for all of his misconduct including the additional offence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, ibid. at para [42]. THE ASSESSMENT OF THE EVIDENCE 1. The submission made on the offender's behalf is that the conduct upon which the additional charge was prosecuted was in the same transaction underpinning the principal offence, and thus the extent to which the additional offence would impinge upon it would be no more than slight. I do not accept this submission. 2. The extent to which the additional offence will impinge upon the principal offence is informed by the nature of it and the conduct upon which the Crown would rely in proof of it or which are admitted by the offender by way of the agreed statement of facts and out of court representations attributed to him. 3. The offender has not given evidence and thus it is necessary to consider out of court statements attributed to him regarding the relevant conduct, if there are any, and facts which are either available from the direct evidence before me or are available as inferences from that direct evidence. The direct evidence includes a series of closed circuit television images of the offender and the victim from when he first came upon her in Oxford Street, Darlinghurst through to when he ran from the scene of his crimes. 4. In this approach I must take care not to overlook that the facts upon which the Crown relies informing the circumstances of the offence and their objective seriousness must be established beyond reasonable doubt in accordance with the authorities, such as for example The Queen v Olbrich [1999] HCA 54. This requires that objective facts proving the seriousness of the offence inferred or drawn as conclusions from basic facts established by way of the agreed statement of facts, the closed circuit television images, or other material presented, must not only be reasonable inferences or conclusions to draw but must also be the only reasonable or rational inferences or conclusions to draw. Expressed in another way, such inferences are not sufficient for these purposes if they are met by available competing inferences inconsistent with the facts for which the Crown contends. PRE-SENTENCE CUSTODY 1. The offender has been in custody for these offences for an extended period of time. He was arrested on November 1, 2019 and released to bail the following day in the Local Court Parramatta. Bail was revoked on November 13, 2019 in the Supreme Court upon the detention application made by the Crown. The sentence therefore must be backdated to reflect this pre-sentence custody. The sentence imposed today will be taken have commenced on November 11, 2019. THE FACTS 1. The offender's counsel conceded that the agreed statement of facts, albeit not signed by the offender, had been provided to him, he had them read to him, and he agreed with their content. 2. The complainant in this matter I shall refer to as JU. Her date of birth was in 1997 and she was 22 years of age at the time of the offences. The offender was born in 1981 and was 38 years old at the time of the offences, he was thus 16 years her senior. 3. On Saturday 28 October 2019 the complainant went to a house in Abbotsford for a barbecue with friends. She was there from about 2pm until 6pm and there drank excessively. She consumed a six pack of beer and two shots of vodka. She had a small amount of food for lunch. 4. Between about 6pm or 7pm the victim and some friends went to another friend's house in Drummoyne and stayed there until about 10.30pm. At Drummoyne the victim drank at least most of a 700 ml bottle of Absolut Vodka; she stated that from that point she was "pretty intoxicated" and her memory was a bit blurry. 5. About 10.30pm the victim travelled by Uber from Drummoyne to the Beresford Hotel in Surry Hills with five others. They stayed at the hotel until it closed about 1am. One of her friends in the Uber, Mr Freeman-Mafi, stated that they were "pretty intoxicated" at that point. At the Beresford Hotel the victim believes she drank vodka and had some shots but she does not recall how many. Another friend, Ms Miller, saw that the victim was drinking something in small mixer type glasses whilst at the hotel. 6. After leaving the hotel the victim and her friends went to the Courthouse Hotel at Darlinghurst located in Taylor Square. The victim recalls leaving the Beresford Hotel with her friends and walking down Oxford Street towards the Courthouse Hotel and from there her memory is said to have been "really blurry". 7. While the victim was at the Courthouse Mr Freeman-Mafi saw her on the dance floor with some of their friends; she was swaying as she was dancing. There were seats next to the dance floor and the victim was constantly sitting down, and then standing up attempting to dance but was unsteady on her feet. Mr Dodd stated that a short time before he left the Courthouse he saw the victim sitting alone at the bench opposite of the bar and thought she looked "really drunk". 8. The victim became separated from her friends at the Courthouse Hotel as various members of her group left at different times. She thinks she may have been kicked out of the Courthouse Hotel at some point. She walked to 5 Star Kebab around the corner from the Courthouse Hotel; she obtained something to eat and sat down on a step outside of the shop. 9. From at least 1.35am to 2.27am the victim was depicted on closed circuit television sitting on a paved grassy ledge on Taylor Square. At 1.35am she was pictured eating some food; she was also pictured speaking on the phone for several minutes. On one occasion the closed circuit TV camera showed her sliding sideways from her seated position. 10. During this time the victim called her friend, Ms Najdovski, at 1.43am. The phone call lasted about 14 minutes. Ms Najdovski states that during the call they spoke about where the victim was and what she was doing. Ms Najdovski heard noises; it sounded like the victim was vomiting, and the victim told her, "I'm vomiting in some bushes". Ms Najdovski states that the victim sounded "really intoxicated" and was slurring her words. Ms Najdovski offered to pick the complainant up; the complainant declined and said, "No, I am f-fine. I will call you back". 11. Around this time the victim used Facebook Messenger to call her friend, Ms House, who was in the United States. Their phone call lasted 16 minutes 48 seconds. Ms House states that the phone call was about 1.40 am Sydney time. The victim told Ms House that she was on Oxford Street as her friends had left her by herself and she had no money to get home. Ms House could hear from the victim's voice that she was crying and that she was heavily intoxicated. The victim said she was going to start walking and Ms House heard the victim's breathing change and heard movement as background noise. The phone call then dropped out. 12. The victim called Ms House back a few seconds later and continued the conversation. The call lasted 15 minutes and 13 seconds. Ms House states that this call was at 1.56am according to her Facebook records. Ms House said that in their second phone call she heard the victim start talking to someone in the background. She could only hear the victim's side of the conversation. She heard the victim say, "That's okay, I'm fine". It then sounded like the victim had gotten up and started walking. The victim told her, "Someone just came up to me and asked me if I'm okay. I'm just going to keep walking". 13. Ms House heard walking sounds again and then heard the victim having a conversation with a group of people; she could hear multiple voices nearby. Ms House heard the victim speaking to someone but the handset seemed to be far away from the victim's mouth; her voice became distant and muffled and Ms House could not hear the exact words. Ms House told the victim to keep walking, to get home, and that she was not in the right mind to be stopping and talking to random people. They had the following exchange: "VICTIM: I know them. HOUSE: No, you don't. VICTIM: I do, even ask him". 1. It sounded to Ms House as though the phone was passed to someone else as Ms House heard a man's voice in the background become louder as though it was closer to the handset. "HOUSE: Do you know the girl you are with? MALE VOICE: What is she saying?" 1. Ms House believed that the man was asking the victim this question, not her. Ms House did not recall anything distinctive about the voice except that it sounded male. "HOUSE: Do you know the girl you are with? MALE VOICE: I don't know". 1. The phone call dropped out at 2.09am according to Ms House's Facebook records. 2. Closed circuit television footage depicts the victim stop outside Kenny's Pork Rolls at 159 Oxford Street at 2.18am and leaning against a wall while speaking on the phone. At 2.21am the victim is depicted as she began to sit on the ground and in doing so fell forward on to her knees and reached out with her hands. She sat down on the step outside the Pleasure Lounge, once seated she continued speaking on the phone. 3. At 2.27am the closed circuit television footage shows the offender walk past the complainant and look down toward her; there is a photo depicting him in that position included in the statement of facts. He is wearing a white T-shirt and blue jeans. The victim was squatting, and was wearing torn jeans. The offender approached the victim and appeared to say something to her whilst making a hand gesture toward her. He then walked passed her and entered the Pleasure Lounge and remained out of frame for about 12 seconds before re-entering the camera frame. The offender approached the victim and sat beside her for about 27 seconds while the victim continued to talk on the phone. 4. The closed circuit television shows that at or about 2.30am the offender got up and walked away from the victim and briefly looked back in her direction. He re-approached the victim about a minute later and sat down next to her while she was on the phone. The victim handed the offender her mobile phone; he put it up to his ear before handing it back to her a few seconds later. The victim held the phone in a manner consistent with using it on loud speaker. 5. The victim states that while she was sitting down the offender sat very close to her. The closed circuit television footage shows that about 2.33am the offender stood up and used an arm to assist the victim to her feet. The offender and the victim held hands and walked northbound along Oxford Street. 6. The victim does recall getting up; at some point she was aware they were walking together but she does not know where they were. Closed circuit television cameras captured the victim and the offender walking up Oxford Street and then walking along Crown Street and Palmer Street into Darlinghurst and Woolloomooloo. 7. The victim recalls that they stopped about twice while they were walking. The first time they stopped it was on a step and there were streetlights. The offender kissed the victim which made her freeze. She said, "I was so scared but I was frozen". The victim recalls that the offender kissed her more than once but she does not recall how many times exactly. She stated, "I was so intoxicated I could not see straight and I could not walk properly". She said that the second time they stopped was when the offences took place. 8. About 2.39am Ms House messaged the victim saying "You message me when you get home and if you need to call me know you can?!!!" About 2.39am the victim replied and said "I am with some" (sic). 9. From 2.46am or 2.50am the victim and the offender were depicted on closed circuit television footage walking along and in the vicinity of Palmer Street Woolloomooloo. The victim is shown to have one around the offender's shoulder; the offender was holding on to the victim's hand with one of his hands and had the other hand around her waist. The victim appears slightly unsteady on her feet in the footage. 10. The facts continue: "The complainant states that the she and the offender walked her around a corner into the alley way, Turner Lane, Woolloomooloo. They stopped near a black Mazda car." 1. I have quoted that passage because of the inclusion of additional words and the apparent suggestion that the offender walked her around a corner into Turner Lane. 2. The victim recalls that the offender put her on the ground in the gutter. She said, "I froze again because I was really scared". The offender took the victim's pants off. The victim recalls, "I know I went out that night with a belt on but that was gone, I do not remember when it was taken off". The offender took the victim's underwear off, moved her whole body and shifted her down so that she is lying flat. The offender took off his pants and inserted his penis into her mouth; that is the offence of sexual intercourse without consent particularised in the Form 1. 3. After this the offender had penile-vaginal intercourse with the victim. She said that, "he started having sex with me in my vagina". This is the conduct founding the charge upon which sentence is to be imposed. 4. The offender pulled the victim's left leg over her head and she found that very uncomfortable. The offender was on top of her with his full body weight on her. The victim said that she was frozen and could not move because she was so scared. The victim was in some pain, her vagina was hurting due to the offender's action and her lower back was also hurting. She was lying down with her back on the gutter and one arm out to the side. The victim said that this felt like it went on for a long time but she thinks it was about ten or 15 minutes. The victim does not recall if the offender used a condom or whether he ejaculated. 5. The victim was wearing a tampon that night. She has no memory of having removed it during the course of the night but when she attended hospital some hours later it was no longer in position. The police in the course of investigation subsequently located a used tampon at the scene in Turner Lane on the ground behind the rear left side wheel of a Mazda 3 parked in Turner Lane. This was forensically examined and DNA matching the profile of the victim was found. 6. The victim's jeans had a pre-existing ripped area on the knees but after the assault upon her the rip on one leg extended further up that leg. 7. At the end the victim remembers she was just lying there and the offender got up and left. 8. The CCTV footage from Ady's Place Backpackers at 103/105 Palmer St, Woolloomooloo, about 53 metres south of Turner Lane, depicted the offender running in a southerly direction along Palmer Street at 3.24am. Closed circuit television from the Cross City Tunnel shows that at 3:24:50am the offender stopped, turned, and headed back in the direction from which he had just come toward Turner Lane and disappeared from frame. He then exited Turner Lane again at 3:25:50am, turned right on to Palmer Street and ran southward. 9. He was subsequently captured on closed circuit television footage travelling up William Street and into the city. At 3:41:56 he was depicted on closed circuit television crossing Pitt and Park Street; the offender was depicted crossing the same intersection walking in the same direction again at 3.43am. The offender was last seen walking outside Foodbase food court on Park Street at 4.02am. He caught a bus back to Yennora via the Parramatta interchange. 10. After the offender left, the victim put her pants back on, she was crying, she felt bad, she walked on to William Street. She made nine phone calls to Ms Najdovski from 3.14am and 3.55am, all of which Ms Najdovski missed. At 3.20am the victim sent a message to Ms Najdovski which read, "I just got full on rapped" (sic). Ms Najdovski did not read the message until about 6.41am. 11. About 3.24am the complainant called Ms House on Facebook Messenger. Ms House states that the victim sounded distressed from the tone of her voice; the following exchange occurred: "VICTIM: I'm been raped by some guy in an alleyway. HOUSE: Oh my god, do you know who he was? You need to do something about this. VICTIM: No, it's fine". 1. There was a pause. "HOUSE: Did you give him consent to do so? VICTIM: No". 1. The connection then dropped out and the call ended. 2. The victim and Ms House had further contact by Facebook calls and messages regarding the victim's movements and how she would get home. At 3.42am the victim was depicted on CCTV footage from the City of Sydney on William Street near Crown Street. The victim flagged down a taxi on William Street; she was in tears and asked the driver if he could take her to Cronulla. The driver would not do so because she had insufficient funds. The victim sat down on a nearby step, she began calling people on her phone hoping that someone would answer. At 3.50am the victim sent a 20 second video of herself to a Facebook group chat which included Ms Najdovski and another woman, Ms Felicetti, in which she showed her ripped jeans and said, "Literally just raped and I'm not even kidding, just got raped in the back of an alley and I just want to go home". 1. About 3.56am the victim called her friend, Ms Guarrera, who answered. The victim stated that she asked Ms Guarrera to come and pick her up. Ms Guarrera states that in the phone call the victim told her, "I've been raped, I need help, can you help?" The victim shared her location with Ms Guarrera using a pin drop map which showed her location as the corner of William Street and Crown Street, Woolloomooloo. Ms Guarrera arrived about an hour later, picked up the complainant and drove to the victim's house and then to Sutherland Hospital. 2. The victim underwent a sexual assault investigation kit examination conducted by the sexual assault nurse examiner at 10.45am on Sunday 27 October 2019. The nurse found there were no injuries to the vagina or perianal area. Samples taken in the course of the examination were forensically examined; the offender's DNA profile was matched to a male DNA profile detected in the following swab locations: 1. The perianal swab; 2. The low vaginal swab. This second result is described as having a limited statistical significance. 1. Semen was detected on the perianal smear and one spermatozoon was detected in an anal smear. Semen was not detected in the vaginal or vulval smears, perioral swabs or oral prints. The anal swab returned a positive result for a screening test for blood. 2. A blood sample was taken from the victim on Sunday 27 October 2019 at 12.30pm. A forensic pharmacologist/toxicologist, Dr Pieternel Van Nieuwenhuijzen, calculated the complainant's estimated blood alcohol concentration at the time of the alleged offence, which was accepted to be between 2.45am and 3am, to have been 0.116 and 0.272 grams of alcohol per 100 millilitres of blood. Most likely it would have been 0.203 grams of alcohol in 100 millilitres of blood. On any view this is a high reading and consistent I might say with the history of drinking that was given by the victim. 3. The doctor gives the opinion that the victim's cognitive ability, her speech and her memory were impaired. 4. The witnesses as I have summarised reported that she was heavily intoxicated, she was unable to stand properly in the bar, she was slurring her words, she vomited, all consist with the significant ingestion of alcohol. She also has a fragmented memory of the events on the day and the night of the assaults. She was clearly, upon this material, well affected by the alcohol she ingested. 5. The police identified the area where the offences occurred in Turner Lane Woolloomooloo. This followed a canvass of the area based upon the description given by the victim, the pin drop location that she transmitted to her friend who picked her up, and the search of the lane area locating the used tampon with the victim's DNA profile. 6. The investigation included the police accessing closed circuit television images from locations in the area; these were subsequently broadcast over the media. 7. On November 1, 2019 the offender was identified on that CCTV footage by Mr Watts, a caseworker from Settlement Services International. Mr Watts phoned the offender and they had a conversation with the assistance of a telephone interpreter. Mr Watts then texted the offender a link to a news article about the offences and two closed circuit television still photographs. The offender said to him, "I was drunk on Sunday". Mr Watts told the offender that if he suspected he had something or believed he was the person in the photographs then he should attend the nearest police station; Mr Watts then reported the identification to the police. 8. The offender attended Fairfield police station about 11.43am on 1 November 2019 in the company of a friend. The police used the friend to translate for them as they put the offender under arrest and administered the caution, then with the assistance of an Arabic interpreter the offender was introduced to the custody manager and he was advised of his Part 9 rights. The offender was cautioned again; he accepted the opportunity to participate in an electronically recorded interview. 9. The offender spoke through the interpreter throughout the majority of the interview except where identified otherwise below in the summary that is provided. He made admissions and the statements in the following terms: 1. He identified himself on several CCTV stills depicting him and the victim; 2. He admitted to kissing the victim; 3. He admitted to having penile-vaginal intercourse with the victim when prompted, and to putting his penis in her mouth. He denied anal intercourse; 4. When they were having sex the victim removed something from her body and threw it away; he did not know whether the victim had her period at the time they had sex; 5. He ejaculated outside of the complainant by removing his penis and using some tissues from his pocket; none of the ejaculate went into the complainant. There is nothing before me either to indicate that there were any such tissues found at the scene or recovered elsewhere; 6. He said that both acts of sexual intercourse were consensual. When asked if the complainant was talking or moving while he was having sex with her he answered by way of the interpreter, "no, no, no, didn't talk". When asked if she appeared to be drunk he answered, "a bit but yeah she was a bit drunk, yes". He said that the victim was drunk when they kissed and said "yeah, it looks like she was, she was definitely drunk". 7. At one point the victim stopped to urinate and he could tell she was drunk from the way she urinated, however he stated, "but she was normal when she was speaking" and she walked with him for more than ten minutes and she understood what was going on. He said the victim was agreeing with everything and he confirmed with her and she was agreeing on everything. 8. He stated that the victim was the one who first put her hand on him and she was the one who initiated the kiss. They were kissing and then the victim removed her pants. When his penis was in the victim's mouth she was talking to him and sucking and she was trying to "revive" it in her mouth. 9. When he first spoke to the victim he asked her if she needed any assistance; she was talking to her friend on the phone. He thinks she wanted to go or she wanted to go to her friend. He said that he would take her to her friend. Once they stood up with each other they were supposed to catch a taxi to go to the offender's house however while they were walking he remembered he did not have enough money and so he said they would go by bus. The victim agreed. He told the victim his home was in Yennora and the victim did not want to go that far. 10. He spoke Arabic and can speak a little bit of English; he can only understand "just very small words" in English and not full sentences. When he and the victim were speaking to each other it was with difficulty and they were using words with signs. During the interview the police asked him to recount in English what he and the victim exchanged when they met and decided to walk together. The words he recounted in English during the interview were, "hello hi, how are you; come with me, come with me home" and "taxi come, go home". She hugged him and then he went home. 11. He drank roughly three beers on the night; he had been in a club and bought some beers and also drank some leftover drinks that other people had left behind. 1. The assertions that fell from him in the course of the interview carry at least the implication that this was a mutual interaction all the way through to when the sexual intercourse occurred, including it would appear upon his representations fellatio in which the victim was a willing participant. The representations include that she hugged him before he left to go home. The representations include that he had consumed roughly three beers on the night. These are all significant propositions. They stand in contrast to his plea of guilty, his admission of guilt in respect of the Form 1 offence, and the summary of the facts from which I have spoken, with which he has agreed. 2. I said earlier in this judgement that the facts had had not been signed but I note on the copy to which I am now referring there is a signature by the prosecution representative bearing the date 25/9/20, there is a signature above the offender's name and beneath that a signature by a person purporting to a witness, the date on this is 23/9/2020. 3. The offender consented to a forensic procedure involving a buccal swab and photographs. A search warrant was executed at the offender's home in Yennora where clothing was recovered matching that captured on the closed circuit television. He was charged at the Fairfield police station. 4. I was played some of the closed circuit television images in court. In preparation of the judgement for this matter I reviewed the recordings in chambers. Those tendered covered sequences that were not summarised in all the detail in the agreed statements. 5. There are 18 sequences captured by cameras located at the front of various premises and by others installed by the Sydney City Council on the streets. The commencement and conclusion times shown in the recordings from premises are not accurate; it is probable that the times shown on the Sydney City Council are. The duration of each of the sequences is accurate. All were recorded in the early hours of 27 October 2019. The times that appear on the recordings which do not appear to be accurate times have been adjusted as I understand the matters in the agreed statement of facts, working back using calculations, employing the duration of each of the sequences and the known to be accurate time stamps on telephone records and the City of Sydney cameras. 6. First sequence: commencing at 02:48:38 and of 1 minutes 20 seconds captured from a camera installed at 159 Oxford Street Darlinghurst; the victim is depicted sitting on steps with her phone held up to her left ear; the offender approached from the opposite direction and approached her looking about as he did so. He walked past her, he looked in her direction. He approached her and walked up the step where she was seated. He returned and looked about as he stood beside her. He reached down and touched or put his hand proximate to her left knee. He looked about and sat beside her and continued to look about as she continued with her attention toward her phone. He stood and walked off. When he approached her at first his conduct was consistent with having noticed her and after walking on he turned back to where she was seated as if scoping out the location and her circumstances. 7. Second sequence: commencing at 02:50:59 from the same camera and of three minutes 16 seconds. The offender returned and sat beside the victim and turned toward her. She was holding her phone to her right ear. The offender appears to speak to her, gesturing with his left hand. She does not appear to respond to him initially but thereafter looked towards him and appeared to be attending to him as he spoke to her. She rubbed her hand over her face. She appeared to either speak to him or to continue to speak on the phone. Other patrons stepped past and over the offender to enter the premises. He looked about but his focus was predominantly upon the victim. Towards the end of the sequence they stand and walk off, he holds her hand as they do so. 8. Third sequence: this shows the same sequence as in the first but from a camera installed at 161 Oxford Street positioned above with a view down toward the victim and the offender. 9. Fourth sequence: this is from the same camera above the victim and the offender showing them clearly captured in the second sequence described above but from that perspective. 10. Fifth sequence: commencing at 02:35:49 captured by a Sydney City Council camera, number 271, at Oxford Street and Palmer Street. The victim and the offender are depicted over ten seconds walking west in Oxford Street on the southern footpath. She had her hands down and he is on her left with his right hand holding her left elbow. She veered slightly toward the right, toward the edge of the footpath and he placed his hand in the crook of her elbow and guided her from the footpath edge. 11. Sixth sequence: commencing at 02:36:17 by Sydney City Council camera number 271, depicts the same activity as in sequence 5 with them continuing west on Oxford Street on the southern footpath walking away from the camera. From this perspective the victim appears to be walking unsteadily. 12. Sequence 7: commencing at 02:36:30 captured by a Sydney City Council camera number 270 At Oxford Street and Crown Street. The victim and the offender continued on in the same direction on the northern footpath of Oxford Street. The offender had his right hand within the crook of the victim's left elbow, he is on her left. It must be that they crossed the opposite footpath in Oxford Street. 13. Sequence 8: commencing at 02:38:34, captured by the Sydney City Council camera which captured sequence 7, but depicting the victim and the offender from behind as they continued on their way. The offender had his left arm about the victim's waist. It must be that he moved to her other side to be in this position. 14. Sequence 9: commencing at 02:50:01 from Sydney City Council number 292 installed at William Street and Crown Street Woolloomooloo. They are walking west on the southern side of William Street, they were captured from behind. He had his left arm around her waist, it is apparent that she is centimetres taller than he. She has her right arm resting over his shoulders, apparently supported by him as they continue walking. 15. Sequence 10: commencing at 02:47:02 from a camera installed at 10 to 100 William Street, Woolloomooloo, depicting the offender and victim as they walked northward on the western side of Palmer Street. She is supported by him and displays unsteadiness. 16. Sequence 11: commencing at 23:51:51 from a camera at Andy's Place Backpackers at 103-105 Palmer Street, Woolloomooloo, walking northward on the western footpath. He continues to support her and he she displays unsteadiness. The timestamp is not accurate on this recording. I also observed that the premises herein described as Andy's Place were described as Ady's Place in the agreed statement of facts. 17. Sequence 12: commencing at 02:19:16 from camera 1 at the City Gym 107-113 Crown Street, Darlinghurst. They are depicted walking north on the western side of Crown Street, he is supporting her and she displays unsteadiness. This appears to be an incorrect time and the sequences not in order bearing in mind that the location is as they were approaching William Street to the point depicted in sequences 9 through 11. 18. Sequence 13: commencing at 02:19:53 from camera 2 at the City Gym capturing them as they walked toward the camera. Once again the timestamp appears to be incorrect and the sequence precedes those of sequences 9 through 11. 19. Sequence 14: commencing at 03:24 depicting the offender in Palmer Street in the vicinity of the Cross City Tunnel, walking from Turner Lane and along Palmer Street a short distance before he returned to Turner Lane. 20. Sequence 15: the view is across Palmer Street, depicting the offender running from Turner Lane. 21. Sequence 16: the view is of the offender running south on the western footpath at Palmer Street. 22. Sequence 17: the view is of Palmer Street from William Street depicting the offender as he runs to William Street, turn right and continues west on William Street. 23. Sequence 18: the offender is depicted walking west on the northern footpath of William Street. THE VICTIM IMPACT STATEMENT 1. I convicted the offender of the offence upon which sentence is to be imposed to allow the victim to read her victim impact statement, and whereupon I was permitted to consider it before the imposition of sentence: ss 30D and 30E Crimes (Sentencing Procedure) Act 1999. 2. The court must consider the victim impact statement at any time after conviction but before sentence and may make any comment on the statement considered appropriate: s 30E(1) Crimes (Sentencing Procedure) Act 1999. 3. The statement serves at least two purposes. First the victim had the opportunity to confront the offender with the impact she has suffered from the crimes before the court, and the Court has the benefit of the description of the effect of the crimes for consideration in the assessment of the facts and circumstances to be synthesised in the determination of sentence. The statement is not brought to account to aggravate the objective facts or the punishment that is otherwise proportionate to the conduct found in these charges. 4. The victim appeared in court remotely and read her statement. It is in the following terms, beginning with para 2: "The first memory I had after the incident was walking up in an unfamiliar environment and realising I was lying in a hospital bed. I was admitted to Sutherland Hospital in a state I would prefer to not mention here in court today. As I started to sober up and realising the severity of what had happened to me, I felt completely numb and in total shock. Despite what had happened to me the night before, continuously being repeatedly being asked the same questions over and over again to numerous nurses and doctors in order to explain what had happened to me was horrific. After several explanations, I was informed that the police had been notified about the incident and detectives would come in and get a statement about the assault. I have never felt so scared, ashamed, and alone in my life. I was stripped of my clothes because they were taken for evidence and I had to wait in a hospital gown until my friend Lucinda came back with some new clothes for me. I was then told by the police that I needed to go to George Hospital for a rape examination as Sutherland Hospital did not have the correct and adequate facilities. Having already not slept, I was exhausted and just wanted to go home. I then had to travel to a different hospital. It just seemed to get worse. After everything that had happened in the past 24 hours I was then stripped down, looked at and touched by another complete stranger so they could examine my body. It was a traumatic experience and it made me feel like I was being violated all over again. This was only the start of the downward spiral for me - three months of complete self-destruction. What I went through, no person should have to experience, but knowing that the assault was reported across major New South Wales news channels made me lose all regard and respect for myself. I felt worthless, helpless and lost all value in my identity. This caused my drug and alcohol use to sky rocket and became my escape. I still experience frequent flashbacks, nightmares and severe anxiety. I was in a state of constant fear. I slipped into a major depression blaming myself for what had happened, I felt it was my fault. The decisions I made that night caused me to be in the situation I am in now. I am still unlearning the feelings of shame, however at the time these were so intense they led to multiple suicide attempts. One suicide attempt ended in a high range DUI and I completely written off car, an incident in which I am extremely to have walked away from uninjured. After a few weeks, I was admit to Sutherland psychiatric unit for two weeks before transferring to South Pacific Private for a further four weeks of intensive treatment. After 18 months of the lived experience of what had happened to me on the most important part of the journey for me is to put this behind me and look forward. The defendant has made this close to impossible. As you can imagine, having to explain had a has happened multiple times due to the defendant's lack of willingness to accept and take consequences for his actions has caused me to become exhausted, angry and continuously made me reconsider whether the legal is in my corner. In my eyes there is absolutely no reason that this court hearing should still be in the early process that it still is. I strongly believe that he should be held responsible for taking advantage of me, especially considering the extremely vulnerable state I was in. He should be punished accordingly for the choices he made, not for the impacts this has had on me for the rest of my life but for the safety of others." 1. The facts represented by the victim were not presented under oath or affirmation and were not the subject of any cross-examination, in keeping with what the law provides for the presentation of this material and the use to be made of it in the course of the exercise of the sentencing discretion. 2. The description of what has befallen this victim is what unfortunately the Court has come to expect as a consequence of misconduct of the type upon which this offender engaged. The description of the embarrassment attaching to the investigative process, where her body in reality is examined as an exhibit following these events, one can understand. The impact of the offences causing her the sense of shame and embarrassment is also understandable. But as I indicated I do not take this material in aggravation either of the sentence to be imposed or the assessment of the objective facts. It is regrettably what the victims of these crimes are likely to suffer. 3. In support of the statement there is a document provided by South Pacific Private on 11 February 2020. I note the date of the document. 4. I also observe at this point that the offender was arrested on 1 November 2019 and the conduct that led to his charges was on 27 October 2019. He was not committed for sentence until 29 September 2020, almost a year after he was first arrested, and it has taken from September 2020 until now for the matter to be finally presented in the District Court for ultimate determination. 5. This reflects the criticism made by the complainant regarding delay and the anxiety that she experienced waiting for the matter to come to a point of resolution. She accuses the offender of not having accepted responsibility, at least at the point when she prepared this statement. This cannot be taken into account to the disadvantage of the offender for the simple reason that the processes now provided in the Criminal Procedure Act 1986 and Crimes (Sentencing Procedure) Act 1999, to encourage the resolution of criminal proceedings and early pleas of guilty are the law, and although time might be taken through the process of negotiation until ultimately agreement can be reached and the proceedings prepared for final presentation, it is sometimes the case that extended time is required. I accept that the delay according to the perception of the victim was unacceptable but it cannot be visited upon the offender to his detriment in an assessment of the sentences that he must face. 6. The document from South Pacific Private confirms her admission on 13 January 2020 and her discharge on 11 February 2020. It describes the nature of this psychiatric hospital and the specialist service is provides. She was recommended to enter treatment in this hospital for 21 nights, participating in an in-patient program. She attended daily intensive group therapy, psycho‑education based structures, workshops and 12-step meetings, and participated in other therapeutic activities throughout the day. 7. In addition to in-patient treatment she was recommended to participate in their "Family Program four days and Changes Program". 8. There is also a report from a sexual assault counsellor, written on 24 March 2020. She is employed in the Southern Sydney sexual assault service located within St George Hospital. She records the victim's presentation at the hospital on 27 October 2019, the report that she had been assaulted by a male stranger in the lane way in Kings Cross in the early hours of the morning, the transportation to St George Hospital that day, the forensic medical examination where the forensic medical examination took place, the release of the SAIK to police, her referral to the Southern Sydney Sexual Assault Service for follow up counselling, her attendance upon this author weekly or fortnightly since October 2019 except for the period over the Christmas when she was admitted to Southern Mental Health Unit and then the South Pacific Private Hospital. 9. The opinion given is that she has been severely psychologically and emotionally impacted by the sexual assaults. She was further impacted emotionally when she found out that the event was broadcast across major news channels and social media at the instance of police in an effort to locate the perpetrator. She has suffered recurrent memory of past sexual traumas enlivened as a consequence of this event. She exhibited symptoms consistent with post-traumatic stress disorder and they are listed. There is reference to her self-destructive behaviour, including misuse of alcohol to block out her memories. 10. It is said in conclusion though that she has shown considerable personal growth and is invested with continuing in her counselling sessions. 11. At 11.45am I adjourned for a short period, but before rising, the parties confirmed that there was provided an updated agreed statement of facts with minor changes from the original document. 12. First at para 27: "It is agreed that the offender's state of mind was that he was reckless as to whether or not the victim was consenting, that is the state of mind was such that he simply failed to consider whether or not the victim was consenting at all and just went ahead with the act of sexual intercourse even though the risk that the victim was not consenting would have been obvious to someone with the offender's mental capacity if he had turned his mind to it". 1. Secondly at para 29 was an addition that the offender agreed that he removed the victim's tampon. 2. Thirdly there were additions to para 31 and 44. 3. These were addressed upon resumption. 4. Before I adjourned the Crown reminded me that there was an amended statement of agreed facts and in the morning adjournment I was able to bring to mind with reference to my notes what occurred on the last occasion. The statement of facts from which I read were provided to the Court on 23 March 2021, as I reflected in the course of my comments regarding the victim and her anxiety borne from the time taken in the proceedings. Negotiations and discussions continued over some period of time and these included the preparation of a modified version of the statement of agreed facts. 5. As I reflected earlier on in this judgement the facts that were presented and upon which submissions were made were unsigned but it was acknowledged by Mr Karim appearing for the offender that the document had been read to him and he agreed with its contents, and thus my reference to the other statement of facts as having been signed was a reflection of how the matter stood at the point when the documents were initially filed in court in March. 6. In any event the Crown has reminded me and brought to my attention that there were adjustments and identified the paragraphs where those additional matters have been included in the subsequent document. 7. First of all para 27 in the document that was the subject of tender is in the following terms: "It is agreed that the offender's state of mind was that he was reckless as to whether the victim was consenting. That is, the state of mind was such that he simply failed to consider whether or not the victim was consenting at all, and just went ahead with the act of sexual intercourse even though the risk that victim was not consenting would have been obviously to someone with the offender's mental capacity if he had turned his mind to it". 1. That is a reflection of legislation which governs the aspect of knowledge of lack of consent in matters such as this, to which I shall make a further reference in due course. 2. At para 29: "The victim was wearing a tampon on the night. She did not remembering taking it out hers during the course of the night, but when she attended the hospital some hours later it was no longer there (police subsequently located a used tampon at the scene on Turner Lane, on the ground behind the rear left side wheel of a parked Mazda 3 In Turner Lane). The tampon was forensically examined for DNA and was found to match the victim's DNA profile. It is agreed that the offender removed the victim's tampon." 1. I have underlined that last sentence. 2. In para 31: "At the end, the victim remembers she was just lying there and the offender got up and left. The offender took the victim's wallet, ran off, and then came back and threw the wallet at the victim she was still lying on the ground with her back on the gutter. The wallet hit the victim on her shoulder/chest area". 1. The paragraph reflects my comments made with regard to the closed circuit television footage we revealed the offender leaving Turner Lane, then to return to Turner Lane after which he fled the scene. 2. Para 44: "At about 5am the victim phoned her friend, Victoria Felicetti. Ms Felicetti states that the victim said, 'I realised my thigh was grazing against the gravel and I was in pain. I realised what was happening to me. I started screaming and yelling and told him to get off. He got up and ran away but then came back and through my wallet at me'". 1. I interpolate here that I shall take this additional part of the judgement as part of the section dealing with the facts, in anticipation that there might be a requirement for me to review the judgement for its publication on Caselaw. THE OFFENDER 1. The offender as I noted was born in 1981 and is now 40 years of age. He has an antecedent offence appearing in the Crown bundle. He appeared on 22 December 2017 in the Local Court at Parramatta for an offence of assault with an act of indecency on 31 May 2017. That is the only record of offending he has in this jurisdiction. 2. The particulars of the charge are that between 10.30am and 10.55am on 31 May 2017 he groped the thigh of a young woman to whom I shall refer as JB. The Crown bundle includes the fact sheet prepared for the assistance of the Local Court in that matter. 3. He was recorded at 10.17am on 31 May 2017 "tapping on" using an Opal card at the Liverpool railway station. At 10.30am the same day the victim of that offence attended the railway station and took a seat on the platform awaiting the arrival of a train to Westmead. She was there for about 15 minutes until a train arrived. While she was there the offender came to that platform and stood near her before taking the vacant seat alongside of her. They sat in that arrangement for a short time before the train arrived. All of that was captured on closed circuit television. 4. A train pulled in alongside the platform and the victim got up and stood waiting to enter it. The offender did the same. She entered the vestibule and took the stairs up to the top of the carriage. She went halfway into the carriage and sat on the left hand side, on a vacant seat which could have taken two people comfortably. There were also a number of other vacant seats in the carriage. She slid across to the left and sat beside the window. The offender entered the carriage and sat directly beside on the same two-seater, to her right. 5. She assessed him to be in his early 50's, of Middle Eastern appearance, medium build with black hair and a black beard and a black moustache with a few grey hairs which appeared to be groomed. She described his attire. She felt uncomfortable because he had chosen to sit directly beside her despite there being available a number of empty seats throughout the carriage. 6. The offender sat slightly forward, he put his left arm up and rested it on the seat in front and moved his right hand across his body and relaxed it on his lap. His right hand was held "limply" - the word used in the facts, overhanging his lap to his left side, close to the victim. The victim saw that he was wearing a silver ring on his left ring finger with an opaque stone. He relaxed into the seat and moved his legs wider apart, taking up more space on the seat and making contact with the victim's leg. She shuffled further towards the window to gain space between them. She was at the time wearing a knee length leather style skirt which when she sat exposed her thigh. 7. In an attempt to cover her legs she placed her bag on her lap and took out a set of headphones and started listening to music. She felt uncomfortable when she saw the offender's finger brushing her leg, however as his hand appeared to be limp she thought perhaps this was an accident. She ignored it and looked out the window against which she was now leaning. 8. As the train pulled into Parramatta his left hand was still resting on the seat in front of him and his right hand remained across his body. He leant forward slightly and turned to the victim, she did not turn back but in her peripheral vision she saw his mouth moving and felt that he might have been trying to speak with her but was unsure as she was trying to avoid contact. 9. She began to feel anxious about his behaviour and she continued to look out the window. She then felt something touching the other side of her right thigh. She looked down at her leg and observed the offender's right hand rubbing the underside of her exposed thigh. She saw that the offender was moving his hand back and forth across her thigh area between her buttocks and knee area. His hand was visibly in contact with the underside of her thigh area, inside the hem line of her skirt. She was uncomfortable and fearful. 10. She jumped and defensively held her hands out before loudly saying "Excuse me, would you mind moving over". The offender did not say anything but quickly slid out of the seat and exited the train as it stopped at Parramatta railway station. She watched the offender through the train window and saw him walk across the platform. She saw him remove a pair of glasses from his pocket and place them on his face. The offender waited for the lift to arrive and she was watched him through the train window as he did so. He travelled down the western concourse of Parramatta railway station and tapped off his Opal card at 10.58am. 11. She continued on to Blacktown and made a report of the event and in due course a statement. Thus the offender was charged with the assault with an act of indecency. 12. The facts provided include a description of the investigative process and the attendance by the offender at 12.30pm on 1 August 2017 to the transport command building at Parramatta. He was arrested and processed and in due course admitted that he was the person depicted in the closed circuit television stills raised. He admitted his presence at the time of the event but could not remember the incident. 13. In the offender's case there were tendered reports including one from Dr Richard Furst, psychiatrist, printed on 14 March 2021. He assessed the offender at the Long Bay Hospital Correctional Centre on 16 February 2021 for about 60 minutes using an audio visual link with the assistance of an interpreter. He had available the agreed facts, the bail report reflecting the offender's criminal history, two psychological assessments, and a letter from the offender's cousins. 14. His demography was discussed. He is of Bidoon ethnicity. He was married on two separate occasions, the first for 12 months, when in his mid-20s; this was an arranged married. There were no children from that union. He then married his first cousin in 2007 or 2008 after they lived together for five or six years. They have two children, a son who is now ten and a daughter who is aged eight; his family live in Iraq, as do his parents and siblings; his brother and a cousin were apparently killed in Iraq in 2014. 15. He was living in Yennora before his arrest and incarceration on 1 November 2019. He is not an Australian citizen and was here on a temporary protection visa at the time of the offence. 16. He was born in Kuwait. He and his family moved to near Basra in southern Iraq after the first Gulf War in 1990. He was nine years of age at the time. He had no formal schooling in Iraq; he was educated only to around fifth grade at primary school. He can read and write and presented as having around average intelligence. His family were poor and subject to discrimination because of their minority ethnic status. He recalls selling cupcakes on the street as a child to make money. He was facing conscription in the Iraqi army approaching his 18th birthday when he ran away to a nearby mountain area to avoid conscription. He was, however, caught by the police or Iraqi security services and was incarcerated and in that time suffered torture. 17. He was sent to the distant region of Iraq, away from his family. He was detained he said in terrible conditions. He suffered torture and humiliation which included regular whipping with electrical cord and lashings or beatings. He described being tied up to a large rotisserie-type rotating machine with his hands tied behind his back. Other prisoners were executed and that added to his level of anxiety. 18. The incarceration and torture he described in his late teens is said to have had a severe psychological impact on him, including intrusive memories of those traumatic events, reliving of trauma experiences, chronic insomnia and persistent nightmares. He spoke of waking up at night, screaming, in the years after his traumatic experiences and described being easily startled by loud noises, including whilst in custody over the last 16 months. He was tearful at the time of the assessment when discussing these traumatic events and torture experiences. 19. He lived in or near Basra again from his early 20s, buying and selling motor vehicles from around the age of 22 to help his family. This coincided with the second Gulf War and the fall of Saddam Hussein's regime and the US occupation of Iraq in 2003. He said his family also suffered from depression, anxiety and post-traumatic stress disorder as a consequence of losing other family members and witnessing various war related trauma. He said that his brothers were kidnapped, one of them was shot and one of them was burnt alive. 20. He came to this country in 2013 as a refugee, an asylum seeker. He continued to experience high levels of anxiety and trauma related symptoms consistent with post-traumatic stress disorder, as noted by the psychologist to whose report I shall come. 21. There was an assessment made in December 2017 and the psychiatrist here summarises what he drew from that document. He has no history of drinking excessively and no history of drug abuse. He has impaired vision and impaired hearing and chronic pain apparently from knee and back problems. The apparent lack of or limited vision and limited hearing were not evident in the closed circuit television images that I have watched and he exhibited no movement consistent with pain in either knee or his back. But I do not overlook that the opportunity to weigh those matters is limited in the circumstances relying only upon what I see in the closed circuit television. 22. The document then deals with the offence related issues. The doctor refers to the offending against a 22-year old intoxicated female stranger/victim as outlined in the agreed facts. He is attributed with the proposition that he had been drinking, consuming three schooners of beer and some drinks that were leftover. The report continues, "He was apparently walking the victim home from Oxford Street and sexually assaulted her in an alley way in Woolloomooloo. He said he, "thinks of it as a dream" and stated he wanted "help her' at the time". 23. He had difficulty communicating with the victim due to his poor English and her intoxication, apparently using sign language and gestures. The next lines in the report refer to his claim that he believed she was consenting to the sexual intercourse at the time of his offending, based on gestures, giving the example of holding her hand; that passage the section in terms that he claimed that he believed she was consenting to the sexual intercourse at the time of his offending is not relied upon by the offender. I was invited to put it to one side. 24. He spoke of his situation being very bad and that it would be better if he died. There is reference to his earlier offence at the Parramatta Local Court. He is attributed with representing that he was sitting next to the complainant there and his leg touched her leg or his foot touched her foot. It is suggested that he was appearing to minimise to the event. 25. With regard to his progress it is said he struggles to cope in custody whilst on remand; he was extremely distressed when assessed by the psychologist, Ms Fritchley, on 26 November 2020. His mental health was deteriorating in custody with similar concerns being noted by Justice Health staff, the concerns relating to his emotional deregulation, anxiety and social isolation; his lack of English was compounding his problem. He says he sees a psychiatrist now and then and feels apprehensive and is on edge. 26. There is then a discussion of other issues including his minority ethnic status, and the diverse stateless Arab people of whom he is a member, who were not granted Kuwaiti citizenship or protection when that country became independent in 1961. His spoke of abuse and discrimination for many years to which his family were subject, that they ran from one place to another, and that they were hit when out on the street and their cars would be burned. When in Kuwait the locals would say go back to Iraq and when in Iraq they would be told to go back to Kuwait. He wants to return to Iraq when he is released from custody notwithstanding this persecution because of his mother's advancing age. 27. His mental state examination was discussed. He said that he had scars on his back from where he was repetitively whipped with electrical cable whilst incarcerated. 28. It is not clear whether this is information that Dr Furst noted from the offender or whether he confirmed the existence of those scars otherwise. 29. He was diagnosed with post-traumatic stress disorder. Page 5 of the report deals with the effect of this disorder upon an individual; the discussion is general in its terms and includes in the final paragraph on that page the following: "Behavioural manifestations of PTSD include tendency towards irritability and anger, getting into fights more regularly, engaging in reckless and self-destructive behaviour, including alcohol and drug abuse, self-harming behaviour and suicidal behaviour. PTSD is also often characterised by heightened sensitivity to potential threats, such as being easily startled, jumping and hyperarousal. Concentration difficulties and difficulty focusing on tasks are also commonly reported. Problems with sleep onset and maintenance of sleep may also be associated with nightmares. Safety concerns are often increased and high levels of autonomic arousal makes sleep difficult. People can feel detached from their bodies [depersonalisation] or from the world around them [derealisation] as part of the dissociative symptoms". 1. Then there is a discussion of the prevalence of PTSD in Australia. 2. The passage I have quoted may be of general application but there was nothing to be seen in the conduct upon which the offender engaged on this night which reflected any of those characteristics. 3. The report then deals with psychiatric and psychological mitigating factors. There is reference to what are said to be long-standing mental health problems because of the post-traumatic stress disorder, arising from his experiences as a citizen of Kuwait without recognition by that country or Iraq, the incarceration, and torture he is said to have suffered as a teenager in his late teens. It is said that he has never really assimilated adequately in this country. 4. The report at p 6 asserts the following: "The offending in question was opportunistic, Mr Alenezi taking advantage of a vulnerable and heavily intoxicated young woman, previously unknown to him, under the initial guise of helping her. His actions of sexually assaulting the female victim were not the direct result of any mental health or psychiatric problems, however, in my opinion, his long-term mental health problems combined with his acute intoxication with alcohol likely contributed to the poor judgment he displayed and his apparent lack of consequential thinking when sexually assaulting the victim, actions he now regrets." 1. I attribute little weight to that paragraph. I do not find that this offending was opportunistic. It was exploitative, the offender taking advantage of the vulnerable circumstances of this victim. 2. There is nothing before me that would lead to the view that he was suffering from acute intoxication with alcohol at any time during this sequence of events. 3. The report then deals with the risk of re-offending using the Static-99R coding form; he is said to be at the average risk of re-offending compared with other male sex offenders. 4. Psychologist Kasim Abaie wrote on 19 December 2017; this was a document prepared before his arrest for these matters and includes the opinion that he suffers severe depression, extremely severe anxiety and extremely severe stress. This assessment included a semi structured clinical interview leading to those conclusions. At that stage he was 36 years of age, and there is a summary of his past life and circumstances as they were at that time. 5. He is attributed with a description of health and psychological issues since he was in Iraq and Kuwait. He said that in his early years of his life he was depressed, isolated and slow at school and would sometimes be bullied. 6. Medication was identified, Zoloft, Sertraline and Panadol. His presenting psychological symptoms were social isolation, long-term and short-term memory problems, communication problems due to mental illness, high level of anxiety and panic attacks, depressive mood with psychotic episode, low self‑esteem, swing moods, difficulty sleeping, lack of motivation and unable to make right decisions for himself, negative self-image, low IQ level due to mental illness and unable to read and write. 7. The examination included his appearance, his speech, his mood, his affect, his thought content, perception, cognition and intellectual functioning, memory attention and concentration, orientation, insight and judgement leading to the diagnosis of a chronic adjustment disorder with mixed anxiety and depressive mood and psychotic episode, insomnia; there follows a recommendation. 8. The assessment followed referral to the psychologist by a treating doctor due to a long-term mental illness. The background history includes a reference to his brother and cousin killed by unknown people in Iraq in 2014, worried about his mother's health problem, his children aged six and four at that point, his lack of criminal history, an isolated person, grieving due to separation from his wife and children. There is no description in this report of the torture and incarceration he described to Dr Furst. 9. There is a report from Dr Ali on 11 February 2021 reporting that Saidah Khalf was diagnosed in May 2020 with colon cancer, leading to surgery, need of chemotherapy until January 2021, and an unstable condition. I understand this to be a reference to his mother's health. 10. There is a character reference provided by Bushra Hamad on 16 September 2021. She is married to the offender. She has always known him to be kind and loving as a husband and father. He has expressed his regret for his actions and the impact it has caused upon their family. He has said that he understands the nature of his actions and accepts responsibility for what he has done and is taking positive steps to address his offending. He has confided in her his remorse. She is unable to work because she is taking care of her children and his mother who is suffering from cancer. The stress to the family, should he suffer harsh punishment, is represented. She is scared and worried for her children. He has opened up to her and said he was under a lot of stress being away from his family in a foreign country and working to support his family. She writes of having marital issues because they were separated with him away to provide better opportunity to his family while she was on her own raising children in a difficult economy. She continues to support him, according to this document, and as I said described him as a kind and loving husband and father. 11. There is a reference from Saeda Khalaf. His mother writes of him being a kind and loving son, husband and father. She has never known him to engage in inadvertent conduct. He is said to be respectful and diligent and she has seen firsthand the impact that his decisions have had on him. He has expressed his "sincere remorse" and guilt on numerous occasions; he understands the nature of his actions. His father recently passed away. Due to the impact of the offender's misconduct his father was unable to handle it is said the fact that his son had resorted to such actions and that he might never see his son again. She refers to the diagnosis of cancer. 12. A report from psychologist Clara Fritchley was written on 31 December 2020 and was obviously prepared for the purposes of these proceedings. She describes his presentation at the assessment which was conducted at the Long Bay Correctional Centre via audio visual link on 26 November 2020 over a period of two hours. The interview was conducted in Arabic with the assistance of an interpreter. She described his presentation, and his distressed affect which worsened in the course of the interview. He spoke of difficult experiences in his life. She described his method and pattern of speech. 13. She spoke of his apparent limited level of education. He denied suicidal ideation; he turns to his god for comfort. He described some perceptual disturbances including hearing voices and sounds and experiencing tactile sensations such as being suffocated, aware that these were not reality based but he found them upsetting. 14. His family background was discussed; he is the third of 13 children. Family are of Iraqi background. Family moved to Kuwait because they could not support themselves in Iraq. Early childhood was said to be "okay". They were treated poorly in Kuwait because of their ethnic status. He was said to be an anxious child and felt overwhelmed and fearful by fighting in his community. He spoke of his mother's symptoms of anxiety and depression. 15. The family left Kuwait when he was about nine years of age and moved to Iraq. There is reference to the war in Iraq, the experiences that caused him fear, limitations upon his opportunity for schooling, the Saddam Hussein regime, his family members were terrorised and subject to interrogation. He recalls one occasion when his father was bashed in front of him and his siblings. 16. There were attributed representations regarding his mother's poor health. The family psychiatric history was discussed. There was reference to depression, anxiety and post-traumatic stress disorder he experienced over his parents and siblings. There was a discussion of his education and employment history. His psychosocial history included recruitment into the Iraqi army where he did not want to serve but was forced to do so. He was unable to tolerate the demands physically or emotionally. He was verbally abused and beaten by senior soldiers. He was unable to endure the experience and ran away to hide in the desert but was found and placed in isolation and tortured. 17. There was reference to his relationships. He has never used illicit drugs. He drank alcohol on occasions; it has never been a problem for him. There was reference to the former assault with an act of indecency. There was a discussion of what was said to be severe and chronic traumatic experiences which he suffered from a young age, the effect of the Gulf War conflicts upon him, and the flashbacks and intrusive memories that he suffered as a result. 18. There is reference to a report by Kasim Abaie from 2017 and what was there recorded. 19. With regard to the offence he said that he would have been home on the day of the offence but felt trapped and suffocated in his environment. There had been stress in his relationship with his family; he had been speaking on the phone with his wife and they had an argument. He was distressed, overwhelmed and lonely. He decided to go to the city as a way to get out of his environment. He was watching other people having fun with their friends and said he would long to be able to have fun with people as they were having fun. On the night he had very little money, he went to a club, bought three drinks which was all he could afford. He then began to drink alcohol which had been left on the tables. 20. He left the club and began walking with the intention of taking the bus home. He saw the complainant speaking on the phone. He described noticing that she did not look well and stopped to speak to her, asking if she was all right. The author referred to the fact sheet referring in term to her speaking briefly on the phone. He then spoke of them walking. He was aware of her levels of intoxication. He also was confused as to the impact that this had upon her ability to consent. He became distressed and emotional when speaking about these events, making his narrative difficult to follow. 21. He agreed with the facts put to him from the fact sheet and said that he wanted to have sex with the victim when he began walking with her and he asked her to come back to his house, which she refused when she discovered how far away he lived. He acknowledged that he then engaged in both oral and penetrative vaginal sex in the street with the victim. He expressed regret and remorse. He said he did not want to hurt her or make her feel bad. 22. He felt intensively ashamed and distressed and was alerted to the fact that the police were looking for him using his image from the closed circuit television footage. There was a discussion of his current circumstances in custody. There was no opportunity to perform a psychometric assessment other than the depression-anxiety and stress scales translated by the interpreter to measure his mood over the past week. The limitations by reason of the medium through which this assessment was conducted must have had some effect. 23. The summary and opinions section of the report deals with his presentation, his demographics and the traumatic and life threatening events he suffered leading to severe post-traumatic stress disorder with the symptoms he claimed to suffer. It is said that para 33 in the report: "It is my opinion that Mr Alenezi's offence occurred in the context of his poor mental health. His symptoms of post-traumatic stress disorder have led him to experience decreased detachment and disconnection from others negatively affecting his ability to develop and maintain relationships, including with his own children." 1. Then there is a discussion of in general terms of such symptoms of the disorder. There is reference to the argument he had with his wife, leading to his distress, and his perception of social isolation and then his approach to the victim who he saw sitting on the street, accompanying her and then committing the offences against her with which he is now charged. His mental health is said to be poor. His symptoms of post-traumatic stress disorder are on the severe range and he is experiencing some perceptual disturbances. 2. There is another document provided by his cousins Ahmed and Mariam Jheran on November 10, 2020. They are aware of the charges that he is facing. They believe him to be genuinely remorseful. 3. At this point in the judgement counsel rose to advise that the offender did not rely upon the material contained in this document. 4. He also noted that the document from psychologist Clara Fritchley was not included in the defence material tendered, though Dr Furst referred to that in his report. Counsel then included Clara Fritchley's report in the tender bundle. The Crown did not oppose that course. The exchange in part is included hereunder: 5. KARIM: I think your Honour also made reference to the report from the psychologist by the name of Fritchley or in the hand of. 6. HIS HONOUR: Yes? 7. KARIM: That was also not in the bundle. 8. HIS HONOUR: It's not in the bundle but it's referred to by Dr Furst, isn't it? 9. KARIM: No, that's absolutely right, it is in Dr Furst's report. I didn't tender it but I noted that your Honour has read it out. I think it should just be formally tendered. 10. HIS HONOUR: Madam Crown, do you want to say anything about that? Part of the difficulty is these documents are filed and they come before me and bearing in mind the nature of the conduct of the proceedings at the moment with the limitations imposed by this virus-- 11. KARIM: Your Honour, what had happened is that there was a change of both solicitor and legal counsel. I had discussions in respect of these matters at a very late stage with Ms Heywood. I mean initially there was some discussion that the matter may proceed to trial but Ms Heywood and I resolved all the very issues before the court by way of those agreed facts. 12. HIS HONOUR: Just before you continue, the report from Fritchley is consistent, isn't it, with what Dr Furst provided and bearing in mind that the other report does not make any reference to his asserted incarceration and torture in Iraq, I would have thought you would want to rely on it. See I thought that it included in the material. 13. KARIM: What I was saying to your Honour is I don't wish to rely upon the documentation from his cousins but in terms of the Fritchley report, what I'm saying to your Honour is that that should be formally tendered. Given that your Honour's read it I have no objection to it and I don't believe Madam has got an objection to that course. 14. HIS HONOUR: Is that so, Ms Heywood? 15. HEYWOOD: Yes, no objection, your Honour, to it being formally tendered. 16. HIS HONOUR: I'll add that to exhibit 1. I was of the impression it was part of the material upon which you rely so I'll just add that to exhibit 1. 17. EXHIBIT #1 SUPPLEMENTED BY THE REPORT OF MS FRITCHLEY TENDERED, ADMITTED WITHOUT OBJECTION SUBMISSIONS AND CONSIDERATION 1. The parties provided written submissions and spoke to them when the matter was presented. It is noted in the Crown submissions that the offender followed the course of the plea of guilty and attracted the discount for utility to which I have already referred. When the written submissions were served by the parties those provided by the Crown were modified from the form in which they were presented in the following ways. 2. In the portion beneath the heading "Fact findings regarding circumstances of offending" paras 4 through 5 including the subparagraphs and clauses within para 5 were struck. By way of summary only the submission by the Crown in para 4 was that the offender should be sentenced on the basis that he understood the complainant to be extremely intoxicated to the extent that she was unable to consent to sexual intercourse. 3. Paragraph 5 in support of that submission drew upon representations of fact in the agreed statement of facts: paragraphs 11, 20, 24, 25 to 26, 47 and 52 (vi). 4. Counsel for the offender advised that the basis upon which the plea of guilty was offered and accepted by the Crown was that the offender was reckless as to whether the victim consented to the sexual encounter. I note that the adjusted statement of agreed facts includes a paragraph to that effect. 5. To accommodate this agreement between the parties I struck paragraphs 4 and 5 with lines in red through them. 6. In paras 16 and 17 the Crown referred to representations attributed to the offender by psychiatrist Dr Furst and reminded the Court of the caution required as opined by Smart AJ in R v Qutami [2001] NSWCCA 353. To the same point is the judgement of Wilson J in Imbornone v R [2017] NSWCCA 144 at para [57]. The Crown did not press that submission. I was left in some confusion regarding this for the reports provided on behalf of the offender and character material depended in large measure upon the truth and accuracy of the attributions upon which the opinions were offered were developed. These included past life history and demographics generally and explanations attributed to the offender regarding the misconduct upon which the prosecution was brought. 7. Insofar as the concessions extended to matters of demography I have no difficulty for objectively there is at least some support for the suggestion of past difficulties in life available from where he was born and his migration to this country. Moreover Dr Furst referred to scarring to his back consistent with the representations that he had been flogged when he was captured after trying to evade military services in Iraq, though it is not said whether Dr Furst saw the scarring in the course of the 60 minutes of his consultation via AVL or was relying upon representations that he had scarring. 8. However with regard to the attributions dealing with the offending behaviour and the circumstances surrounding it I have taken the guidance offered by Smart AJ and subsequently by Wilson J, particularly in light of what must have been lies told to the police in the course of the interview in which the offender participated. 9. This is a standard non-parole period offence in which the provisions of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 must be brought to bear. The provisions introducing standard non-parole period were amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. 10. Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table that taking into account only the objective factors affecting the relative seriousness of the offence falls within the middle of the range of objective seriousness. 11. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or needed to be taken into account. 12. Section 54B(3) requires the Court to record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account. 13. The objective gravity will be assessed upon the consideration of the objective factors effecting the relatively seriousness of the offence without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence. 14. The fixing of a non-parole period is but part of the task whereby the court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged or tiered process of reasoning when assessing appropriate sentence but must identify all relevant matter bearing upon the question of the appropriate sentence in the process of intuitive synthesis discussed for example by McHugh J in Markarian v R [2005] HCA 25. 15. In determination for the sentence for this offence, for which there is specified a standard non-parole period, it and the maximum penalty are legislative guideposts for the sentencing court, along with other established sentencing practices and by reference to matters identified as relevant in s 3A, 21A and 22 of the Act. These provisions were discussed by Johnson J in Tepania v R [2018] NSCCA 247 at para [109] and following. His Honour wrote at para [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence"; ... 1. His Honour thereupon cited authority. "[113] The concept of 'moral culpability' was used by the sentencing Judge in this case and in submissions to this Court. The term 'moral culpability' has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v R (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476–477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability." 1. His Honour then went on to discuss Muldrock v The Queen [2011] HCA 39, Munda v Western Australia [2013] HCA 38 and Bugmy v The Queen [2013] HCA 37 and Filippou v The Queen [2015] HCA 29. His Honour referred to the DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 and the judgement of McClellan CJ at CL speaking to the significance of mental health which might be found to have contributed to the commission of an offence in a material way, thereby to reduce moral culpability. But as was noted at para [119] by Johnson J in his judgement, this is but one of the many factors to bear on sentence, each of them sometimes if not often pulling in different directions. 2. The question of mental health is found at its highest level in the opinion of offered by Dr Furst to which I have referred and upon which I have already commented; then in the assessment by the psychologist Clara Fritchley, to which I have referred. 3. However, the material before me does not persuade me that whether he was lonely, whether he suffered from the symptoms of post-traumatic stress disorder, or whether there were some sequelae from the argument he had with his wife, these adequately explain in terms of poor judgement and lack of consequential thinking the misconduct upon which he engaged in this instance. 4. The submissions made on his behalf are that he should be seen to have engaged upon the offence well below the middle range of objective seriousness. The structure of the legislation now which deals with knowledge about consent found at s 61HE Crimes Act 1900. Subs (3) is a reflection of the passage which I quoted from the statement of agreed facts dealing with the offender's acknowledged state of mind. Knowledge about consent embraces actual knowledge or recklessness as to knowledge or the absence of any reasonable grounds for believing that the alleged victim consents to the sexual intercourse. 5. I have not embarked upon an analysis of the legislative purpose behind the amendments bringing into the Crimes Act these provisions. I note that s 61AE(4) requires the trier of fact to have regard to all the circumstances of the case including any steps taken by a person accused to ascertain whether the alleged victim consents to sexual activity, excluding in that assessment self-induced intoxication of the accused. 6. The argument as I perceived it on behalf of the offender is that there are gradations of seriousness reflected in the structure of this provision dealing with the knowledge about consent, the more serious being conduct which an offender embarks upon, knowing that the victim does not consent, with perhaps below that the concept of recklessness and perhaps below that a belief for which there are no reasonable grounds. 7. Accepting the merit of that submission it is not only that gradation which is brought to account when assessing the objective gravity of such misconduct. Recklessness itself will embrace degrees of perception and if it was the offender's state of mind, as he admits this by way of the agreed statement of facts, as was put to me in the course of submissions, the question then arises as to when that state of mind arose. It was suggested to me that his knowledge and perhaps the level of recklessness at its highest does not or did not arise until after the victim and the offender arrived at the scene of the offences. 8. I do not accept that submission. I do not accept the submission that this offence falls within the low-range of objective seriousness. I do not accept that this was properly described as an opportunistic offence. I accept the aggravating factors identified by the Crown that the victim was vulnerable and was so by her state of intoxication from the moment when the offender came upon her, but was increasingly vulnerable by the time he had walked her to Turner Lane where he committed these crimes. This was a dark alley way where she was ultimately left without clothing while he fled, after he returned to throw her wallet at her. Thus s 21A(2)(l) Crimes (Sentencing Procedure) Act applies. 9. The Crown has submitted that the victim suffered substantial harm by reason of the matters raised in her victim impact statement and the supporting documents. I am invited to s 21A(2)(g). I accept that the harm she has suffered as a consequence of these events is significant but I do not come to the view that as an aggravating factor it should be brought to account. However all that she has said I have included it in the factual matrix upon which to assess the punishment that the offender must face. 10. I am also reminded of s 21A(2)(d) which provides as an aggravating factor a record of previous convictions particularly if the offender has been sentenced for a serious personal violence offence and has a record of previous convictions for seriousness personal violence offences. The definition of serious personal violence offences found in the Crimes (Domestic and Personal Violence) Act 2007 includes offences with which this offender is charged on this occasion and on the earlier occasion. 11. It should be observed though that a record of antecedents in aggravation of a matter has a limited role to play. It cannot aggravate the objective seriousness of the offence or the sentence that is proportionate to that offence; it is relevant to the assessment of specific deterrence, the need for denunciation and the need to protect the community from such conduct on the part of the offender. 12. The Crown has assisted me with submissions with regard to general and specific deterrence. With regard to his subjective material, the medical evidence has been provided, I agree with the submissions that the evidence is insufficient to establish a causal link between what was reported by the psychiatrist and the psychologist and the offender's decision to embark upon these crimes. 13. The Crown made submissions with regard to special circumstances, reminding me that lack of remorse and poor prospects of rehabilitation require increased weight to be attributed to the need for protection, and militate against finding of special circumstances in appropriate cases. I have come to the view though notwithstanding those features that this is a case that is replete with special circumstances and that I should reduce the custodial component and increase the parole period that I have selected for this misconduct. 14. Written submissions and oral submissions are offered in support of the offender by his counsel, Mr Karim; these include the proposition that he was affected by alcohol at the time of the offending, although to find that he was so is difficult in the circumstances when I look to his presentation on the vision that was presented to me, and when I bring to account the representations he made regarding what he had to drink, and the course of his conduct throughout the time when he first came into the presence of the victim, and abandoned her in Turner Lane at Woolloomooloo. In any event, self-induced intoxication is not a mitigating factor by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999. 15. The subjective case upon which the offender relies is articulated in some detail in the written submissions and ultimately I am left to conclude that I must find on the balance of probabilities that he has suffered those experience in the Middle East as he has described them to those who have provided reports. 16. I agree with the Crown submissions that the principal offence falls above mid-range of objective seriousness for the reasons that she has advanced. But it is said on behalf of the offender, as I noted, that this was below middle range of objective seriousness and this was opportunistic behaviour, and the Court could not come to the view that the offender was actually aware that the victim did not consent or that she had withdrawn her consent until she indicated so immediately before he desisted and fled the scene. I do not accept that submission bearing in mind the concessions made with regard to recklessness and the question as to when that state of mind arose. 17. Although in light of the premise upon which the offender offered his plea and accepted by the Crown, that I must determine sentence upon the basis that his knowledge of the absence of consent was in terms of recklessness, it does not follow that this encounter should be seen to be a shared moment up until the time when it is suggested, at least by implication, that the victim did not withhold consent until the point of her unbearable discomfort. I find that the offender selected this vulnerable young woman for sexual exploitation, perhaps motivated by the state of mind that evolved after his argument with his wife against the background of his sense of isolation and loneliness. I am satisfied that he did not care one way or another whether or not the victim would consent. 18. He relies also upon the opinions that are given in the reports from which I have read in the reduction of his moral culpability, in addition to what is said to be his impaired vision which it was suggested should also attract a measure of sympathy as I understood what was said on his behalf. I do not accept that submission. As I said I find the offender exploited this vulnerable young woman. He was 16 years her senior. He encountered her in her intoxicated state as she sat on a step at the front door of a premise on Oxford Street. He took care to look about as he noticed her, walk past her and returned to her to engage her in conversation in which he asserts there was capacity to communicate, although limited due to his lack of English. 19. He walked her from that location a considerable distance to a lane way in Woolloomooloo where he placed her in the gutter before removing her clothing, her tampon, inserting his penis into her mouth and then her vagina until ejaculation, which he was careful enough to achieve outside of her body. This was his assertion consistent with the subsequent forensic procedures carried out in the course of investigation of the victim's body. Afterwards he fled the scene, returned to throw the victim's wallet at her. He again fled, leaving her in the gutter, ran off up William Street and into the city where he caught transport home. 20. The suggestion by the psychiatrist that his past history and acute intoxication at the time led to poor judgement without consequential thought I do not accept. There was no evidence to suggest that the offender was intoxicated to that extent and the proposition is inconsistent with what is to be seen of him as he walked the victim from Darlinghurst near Taylor Square to Turner Lane some significant distance away. 21. The purposes of sentencing are set forth in s 3A Crimes (Sentencing Procedure) Act. They are: 1. to ensure that the offender is adequately punished, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his actions, 6. to denounce the conduct, 7. to recognise the harm done to the victim and to the community generally. 1. These consideration as it is said overlap and sometimes point in different directions. In this instance there is the need for adequate punishment, the prevention of crime by deterring other persons, the offender is to be made accountable and his conduct is to be denounced and all require the imposition of a sentence of imprisonment, assessed upon the synthesis of objective matters to which a discount of 25% for utility is to be applied. 2. I am satisfied that deterrence of the offender and the need protection of the community attract less a significance in light of what I accept to be the offender's desire to rehabilitate and which it is said he has been attempting to achieve, albeit with the challenging circumstances in custody. 3. It remains however that in my judgement a sentence of imprisonment must be imposed with a significant reduction in the custodial component to reflect special circumstances which I am satisfied warrant a longer period on parole, including that this is his first time he has been incarcerated, there is the need to encourage his rehabilitation, and the circumstances of his family which must add to the punishment he would otherwise experience in custody without those concerns. 4. To those I would add the difficulties created by the COVID-19 virus generally and consequently by way of limitations within the Corrective Services facilities, the limited skill the offender has with the English language, that he has limited family support in Australia, and that he is in need of an appropriate measure of supervision for a period greater than what would be provided by the application of s 44 Crimes (Sentencing Procedure) Act 1999 to address the propensity he has demonstrated at least to some extent in the two episodes of offending with which he has been charged, for the unacceptable exploitation of young women in vulnerable circumstances. THE SENTENCE 1. Taking into account the additional offence on the Form 1 and upon the application of the discount of 25% for utility applied to the starting point I have adopted upon the synthesis of the material before me, including the additional offence as I have said, I sentence offender to a non-parole period of imprisonment of 5 years, commencing on 11 November 2019, and expiring on 10 November 2024. I impose a further period of imprisonment of 2 years and 6 months to commence at the expiration of the non-parole period and expiring on 10 May 2027. 2. The overall sentence therefore is one of 7 years and 6 months including the non-parole period of 5 years. ********** 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: 21 January 2022