New South Wales District Court CITATION: R v Jasim ALSEEDI [2008] NSWDC 284 HEARING DATE(S): 5 August 2008 - 11 August Trial 3 October - Sentence JUDGMENT DATE: 3 October 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Sentenced to imprisonment with an effective overall sentence consisting of a non-parole period of five years and a head sentence of eight years. CATCHWORDS: Criminal law - Sentence - Indecent assault - Sexual intercourse without consent PARTIES: The Crown Jasim Alseedi FILE NUMBER(S): DC 2008/11/0729 COUNSEL: J Trevallion - Offender SOLICITORS: NSW DPP Chegwidden Solicitors SENTENCE 1 HIS HONOUR: The offender was employed as a loss prevention officer. On 5 December 2006 he was working in the Coles Supermarket at Merrylands. He was interested in the store manager, JF. When he had previously worked in the store he had made comments to her such as, "You've got a pretty face. You've got a beautiful smile," and things of that nature. JF did not encourage him but the offender would not take the hint. 2 On 5 December his attentions persisted. They became more explicit. He said to her that he just wanted to spend ten minutes with her and that he really liked her. JF still did not encourage him. She tried to brush him off. She was embarrassed by his intentions. 3 Part of her job involved faxing some papers prepared by the offender. Together they walked up to the manager's office and as they did so the offender again said, "I just want to spend ten minutes with you." JF replied bluntly, "no, it's not going to happen." Once they got to the manager's office, JF turned her attention to the computer. 4 She needed to record some price changes which had been made in order to ensure that customers were not charged more than they should have been. While she was doing this, the offender closed the door. He began to ask JF why she would not go out with him. He said, "I just want to kiss you" and before JF knew what was happening, he had forced himself onto her and begun kissing her. She pushed him off but he kissed her a second time. He then began to put his hand down her shirt and grabbed her breast. He began to suck it. That action formed the basis of the first count on the indictment, an offence of indecent assault. JF was trying to resist but she was seated and he was standing up over her. He was also much stronger than she was. He then grabbed her hand and placed it on his penis on the outside of his pants. She could feel that he had an erection. That action of the offender forms the basis of the second count on the indictment, also an offence of indecent assault. 5 He then said, "This won't take long." He had previously exposed his penis. He then grabbed JF's head and forced her mouth onto his exposed penis and forced her to give him oral sex. After a short time when he said that he was about to ejaculate, JF managed to push him away so that his penis came out of her mouth. He then said, "Watch. Watch," and masturbated in front of her before ejaculating onto the floor of the manager's office. This was the basis of the third count on the indictment, an offence of sexual intercourse without consent. It is an offence which carries with it a standard non-parole period of seven years. 6 JF said that after these three offences she was in a state of shock. She went into a different office where the fax machine was and faxed off the papers that the offender had asked her to. Closed-circuit television footage showed what she did in the room. I should say there was no closed-circuit television footage in the manger's office. In the fax room she is seen to place her head in her hands, clearly exhibiting distress at what had just happened to her. She later attempted to contact her friend before contacting her superiors at Coles and eventually the police. 7 The offender pleaded not guilty to the three counts on the indictment but a jury found him guilty after a relatively short trial. He did not deny that the sexual activity occurred but said that it was all consensual. Indeed, it was his version as told to police in the electronically recorded interview that JF has effectively seduced him. He said that he was only interested in having his documents faxed off, but that once JF started to seduce him, he became excited and did what JF wanted him to. The jury clearly rejected that version of events, finding beyond reasonable doubt that the circumstances in which the sexual activity took place were as the complainant described. 8 These were serious offences. The offender was given not the slightest reason to think that the complainant might either be romantically or sexually interested in him, but he seems not to have cared, deciding to indecently touch JF, then forcing her to perform oral sex upon him despite her making it clear that she did not want that to happen. 9 The offender was born in Iraq in July 1972. His father died when he was five years of age. Most of Mr Alseedi's family remain back in Iraq. His mother lives with one of his brothers. He also has a sister and another brother living in Iraq. Their situation was the subject of some evidence before me. The offender was educated in Iraq but decided to leave the country once the Iraq-Kuwaiti war started. He was deeply frightened, not unnaturally, of the prospect of being killed in that war and so he ran away. 10 He went to Iran for a number of years where he worked selling fruit. He then decided to come to Australia. He had wanted to do this for some time. He went to Malaysia and then to Indonesia before eventually arriving in Western Australia in 1999. He worked in Derby and then Perth before moving to Sydney where he worked firstly as a waterproofer and then as a security guard. It was his work as a security guard which led to him committing the offences for which I must sentence him. 11 The offender has a relatively minor criminal history. He was dealt with for common assault in 2002 and placed on a s 9 bond for twelve months. Also appearing on his criminal history is an offence of escaping lawful immigration detention. As is well known, escapes can vary in their objective gravity. The fact that the sentence imposed on the offender was a relatively small one suggests that his version of the offence was likely to be true. He said that, he and other refugees simply walked out of their detention centre and sat down waiting for reporters to arrive so that they could protest against their treatment; technically an escape but one which is not of great moment in the circumstances that now present themselves in relation to the sentencing of the offender for these offences. 12 The offender has a fiancée, Ms Khoury, who gave evidence to me today. They have been engaged since 2006. The offender also is supported by a number of people in the community. A number of references were tendered before me attesting to his qualities and many people have attended court today to support him. He is fortunate that he receives visits from a number of these people whilst in custody. 13 The offender is doing his time in custody particularly hard. He is significantly depressed and anxious about spending time in custody. He was regularly in tears in the witness box when giving evidence before me today. I am satisfied that he is affected by his conditions of custody much more so than most other prisoners. He is currently on protection. It cannot be assumed, however, that that will continue or that, if it does, the conditions of custody will be worse than in the general prison population. Indeed the evidence is that his present conditions of custody are no worse than those of the general prison population. There is no evidence that he will continue to remain in protection if his conditions of custody do become harder than in the general prison population. 14 I mentioned before that the circumstances of the offender's family in Iraq received some attention during the sentencing submissions today. His mother has recently suffered a heart attack I am told and has lost her sight in one eye. The offender was also for many years regularly sending money back to Iraq, comparatively small amounts in Australia but these were significant amounts in Iraq and able to benefit his many family members. 15 It was submitted by Mr Trevallion that the hardship which would be occasioned to the offender's family through him being unable to send money back to Iraq was exceptional. I do not accept that that is the case. It is unfortunately commonplace for breadwinners to go to gaol and their dependents to therefore suffer. It is perhaps unusual that these dependents are in Iraq and that there is no formal system of social security available to assist in their welfare but that does not mean that they will suffer significantly. 16 Indeed, to their great credit Mr Alseedi's community have clubbed together to provide a significant amount of money to provide to the offender's mother so that she can have an operation. It is true, as Mr Trevallion says that it is much more likely that a relative will send money to a person in need in Iraq than strangers, but when I have to assess whether the hardship to be suffered by those left in Iraq is exceptional I must of course necessarily take into account that others appear to have stepped into the breach somewhat, to ensure that the family back in Iraq do not suffer unduly. In any case I do note that some members of the family are working. I note also that there was no real evidence as to any concrete hardship that would be suffered by any member of the family in the absence of the regular payments which had been made by the offender. 17 A victim impact statement was tendered to me. It revealed the significant effects that had been felt by JF as a result of the sexual assaults on her. Those effects are long lasting and significant. They are precisely what can be expected from serious offences such as this. The effects that are felt by victims of sexual assault are one of the reasons that the court treats very seriously those who sexually violate others. I do not regard the hardship felt by JF as an aggravating feature because it appears to me to be exactly what can be expected from serious misconduct such as this. 18 There are many circumstances of this offence which are neutral in terms of whether they are mitigating or aggravating features. For example, it is not an aggravating feature that the offence was planned but nor has it been established that it was a mitigating feature that it was planned. There appears to have been some level of planning but not sufficient to justify the aggravating feature. The offender does not have a significant record of previous convictions; that is a mitigating factor. The fact that he does have previous convictions does not aggravate the matter at all. As I have indicated they were for relatively minor offences. 19 It is difficult to find that the offender has good prospects of rehabilitation and, in fact, I cannot make that finding. The most obvious impediment to that finding being made is that the offender continues to maintain his innocence. His failure to admit his guilt suggests that nothing, apart of course from the sentence I must impose upon him, will prevent him from in future doing something similar to what he has done in the past. 20 I did mention that the offence of sexual intercourse without consent carries a standard non-parole period of seven years. On occasions courts have attempted to categorise various forms of sexual intercourse with suggestions occasionally being made that some forms of sexual intercourse are necessarily less serious than other forms of sexual intercourse. However those remarks do not appear to have been followed in other cases. 21 I am satisfied that the appropriate way of looking at the various forms of sexual intercourse is not to apply blanket determinations that one form is always more serious than another, but to look at all the circumstances in which the particular form of intercourse occurs. Thus for example whilst it may be thought that digital penetration will usually be less serious than other forms of sexual intercourse, that would not automatically be the case. In order to decide the seriousness of a particular act of intercourse much more needs to be looked at than the form the intercourse takes. 22 In this case, as I mentioned, the form of intercourse was fellatio. I take into account that the penetration of JF's mouth by the accused's penis was relatively quick and that he did not ejaculate in her mouth. He did however physically force JF to perform the fellatio upon him when he grabbed her head and forced it towards his penis. Primarily because of the relatively short period of time that the offence took, I will find that it is slightly below the middle of the range of objective seriousness. 23 There are special circumstances in this case. This is the first real period of custody to be served by the offender and as I have mentioned he is significantly depressed and anxious, much more so than is generally the case and he will benefit from an extended period of parole upon his release from custody in order to re-establish himself back in the community. 24 I will not impose sentences on the first two counts on the indictment which are accumulated upon any other sentence. They will be wholly concurrent with the sentence for the more serious offence. The offender went into custody on 11 August 2008 and so the sentences I will impose will commence from that day. 25 On counts 1 and 2 the offender is sentenced to imprisonment. I set a fixed term of three years to date from 11 August 2008. 26 On count 3 on the indictment the offender is sentenced to imprisonment. I set a non-parole period of five years and a head sentence of eight years to date from 11 August 2008 which means that the offender will be eligible to be released to parole on 10 August 2013. I recommend that the offender be considered for acceptance into the CUBIT program. ********** 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. 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