New South Wales District Court CITATION: R v Abdul Reda Al-Shawany [2007] NSWDC 141 HEARING DATE(S): 15 June 2007 JUDGMENT DATE: 15 June 2007 JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ DECISION: On the two count on which the jury brought in a verdict of guilty the offender is convicted on each count. ; On count one the offender is sentenced to a period of seven years imprisonment to commence on and from 24 April 2007 and to expire on 23 April 2014, with a non-parole period of four years and six months to expire on 23 October 2011. ; On count two the offender is sentenced to a period of seven years imprisonment to commence on 24 October 2007 and to expire on 23 October 2014, with a non-parole period of four years and six months to expire on 23 April 2012. ; Thereafter the offender is to be released to parole on 23 April 2012.; There will be a six months accumulation on count 1 so that the total effect of sentence is one of seven years and six months imprisonment to commence on 24 April 2007 and to expire on 23 October 2014, with a total non-parole period of five years imprisonment to commence on 24 April 2007 and to expire on 23 April 2012.; The total period is one of seven years and six months, and five years non-parole period. CATCHWORDS: Sexual intercourse without consent - Non-publication order - DNA - Vulnerable victim - Victim impact statement - Middle to high range criminality LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 R v Oliver (1980) 7 A Crim R 174 Gilson v The Queen (1991) 172 CLR 353 R v H (1980) 3 A Crim R 53 Regina v Tait and Bartley (1979) 46 FLR 386 R v Fernando [1999] NSWCCA 66 Ibbs v The Queen (1987) 163 CLR 447 Veen v The Queen [No 2] (1988) 164 CLR 465 CASES CITED: De Simoni (1981) 147 CLR 383 R v Slack 2004 NSWCCA 128 R v MAK [2005] NSWCCA 369 R v Russell (unrep, 21/6/96, NSWCCA) R v BUS (unreported, CCA, 3.11.95) Baverstock [2003] NSW CCA 228 Walker [2006] NSWCCA 228 R v Pastovsky NSW CCA 28.6.1996 PARTIES: R Al-Shawany FILE NUMBER(S): 06/21/3216 COUNSEL: Mr M. O'Brien (Crown Prosecutor) Mr C. Pike (Defence Counsel) SOLICITORS: Mr Mahamah (DPP Solicitor) Mr Rashid (Defence Solicitor) - 37 - JUDGMENT 1 In this matter of R v Abdul Reda Al-Shawany, being file number 06/21/3216, the offender was found guilty by a jury following a trial in the District Court at Campbelltown, on two counts which were as follows: that Abdul Reda Al-Shawany, on or between 1 September 2002 and 27 September 2002, at Warwick Farm in the State of New South Wales, did have sexual intercourse with Ms NH. 2 The indictment provides the full names of the complainant but, as I have indicated previously, there is a non-publication order in relation to not only the name of the complainant but any details which would tend to identify her. 3 The indictment goes on to say that that sexual intercourse was without the consent of Ms NH, knowing she was not consenting. 4 The two counts, which were in identical terms, related to acts of firstly penile/vaginal intercourse and secondly, an act of penile/anal intercourse. 5 The maximum penalty for each of the offences was fourteen years imprisonment pursuant to s 61I of the Crimes Act 1900. Background 6 In terms of background, Ms NH was, at the date of the offence, aged about fifty. I will not give her dates of birth for the same reason. She was an Iraqi citizen who had been raised and married in Iraq. She had thirteen children. 7 Ms NH was a poet. Apparently on one occasion in 1999, she recited poetry in a public square in Baghdad. Following that, members of the Iraqi secret police went to her home early one morning. She was taken from the bed she occupied with her then two year old son and husband to a gaol. She was there beaten after having been tied up by her legs. Following that she was taken to what appears to be a prison hospital from where she was able to escape. She made her way to Syria and remained in Damascus, it would seem, for about eleven days. 8 During that time she made contact with the offender who, at that stage, was operating a shop in Damascus. He became aware, apparently, that the Syrian police had been attempting to locate her. It was then arranged that she would go to a country area in Syria. 9 Ms NH was able to escape from Syria and went to Indonesia. Ultimately she left Indonesia by boat and ended up on Ashmore Reef off North Western Australia where she was apprehended by the Royal Australian Navy. She was ultimately taken to the Woomera Detention Centre. 10 While at that centre, Ms NH suffered a stroke and was she required to use a walking stick thereafter. That situation - and her frailty - was clearly apparent in court during the trial and indeed on these sentencing proceedings when she left the court. The evidence in the trial was that she was in a similar position, at least from a medical and presentational point of view, in the period after she had suffered the stroke in the detention centre. 11 It seems that after a period of about a year, or certainly some months, Ms NH was moved to the Villawood Detention Centre. There she was given assistance by various relief agencies. She was able to obtain a copy of the Bible which she started to read. She also came into contact with other persons who were of various Christian denominations. 12 While she was at the Villawood Detention Centre, Ms NH was also visited by the offender and it seems by another individual by the name of Zohair El-Amri. The offender, in the presence of other persons, had apparently noted that Ms NH had come into contact with Christians and she gave evidence as to what he said as follows: (T16/4/07 p21 line 17): "Q. When you say these people were against you what did they say to you? A. They told me that these are very infidel people. Q. Infidel? A. And if you go with them you will be considered to have left or converted and then your killing would be Halal. Q. Your killing will be Halal. What exactly does that mean though, can you just explain that? A. Yes, like if someone killed me they will go to heaven straight away." 13 I will refer to that later when making reference to the comments made by the victim in her victim impact statement. 14 Ultimately, MS NH was found accommodation by a Catholic relief agency and she moved from the detention centre to separate accommodation. She was also given a mobile phone on which she was later telephoned by the offender. 15 On one occasion he said to her that he had news of her family, who at that stage were still in Iraq. Understandably as a mother of thirteen children, and a wife of a husband of some years standing - some of which children would appear to have still been in prison at the time in Iraq - she was desperate to hear that news. 16 Accordingly, she agreed to the arrangements proposed that she would meet the offender and Mr Zohair the following day at the Warwick Farm railway station in outer Western Sydney. That morning she was met by Zohair, it is said, who took her from the station to a car which was being driven by the offender. She was in turn then driven to a block of units in Warwick Farm. She had not been to that area and that block before. Incident 17 Thereafter in the company of the two men she went into the block of units. She was preceded by Mr Zohair and followed by the offender. After she had entered the unit she was hit on the back of the head and either was forced onto, or fell onto, what appears to have been a mattress (which she referred to as a sponge throughout her evidence). 18 The offender then tied her hijab across her face and down to the area of her chin. She demonstrated how that was done before the jury. The offender then removed her trousers and underpants, which acts she also demonstrated to the jury. 19 Two acts of intercourse then took place. Preceding and during those acts the victim felt an object (which she thought was a knife) in her back. She was unable to move, that inability being either caused by, or accentuated by, the fact of her physical condition resulting from the stroke she had had while in the detention centre. 20 Ms NH's evidence was that after the offender had finished the second act of intercourse, and had ejaculated, he said to her words to the effect of "May your Christ benefit you now". That seems to have been variously translated as "May your Jesus help you now.". 21 Whatever the translation, to the extent that there is a limited difference, I think the effect is the same. 22 At that time the victim was able to look around and identify the offender. She said that she saw a birthmark on him, in his stomach area. Thereafter the offender called out to his companion (who had earlier gone into a bathroom) and said that he was going to work. He left the unit. 23 The victim then wiped what she said was 'the dirt' from her underpants. She clarified that in her later evidence by saying it was the offender's semen. She dressed and left the unit and went downstairs to an area where there were rubbish bins located. 24 With the very limited command of English she had - that she understood - she asked for directions to the Warwick Farm railway station and ultimately returned to her home. Complaint 25 In terms of the complaint evidence, immediately or shortly after the incidents in the unit at Warwick Farm the victim contacted workers at the Marian Centre in Lewisham. She attended there on late 26 September, 2002 in what was almost an hysterical state. 26 The manager of the Centre, Ms Chaloupka, who I interpolate to say I understood was of the Muslim faith, went to the Centre the following morning. She arranged for a representative of a telephone interpreter service as well as the police to attend. As one of the police officers attended was a male police officer (who was apparently carrying a gun), the victim reacted, again adversely. There were further delays while another female police officer was sought and attended. 27 Ms NH remained highly upset and near hysterical at that time. She was admitted to a hospital where she remained for a number of days. Subsequently she said she went to talk to the Sheik at the Lakemba Mosque but that using her words "he was not on her side". Identification 28 In terms of identification the victim gave an account of what had happened to her which, in relation to the essential elements of the offences, was consistent with her other accounts and other aspects of the evidence. 29 Importantly, she identified the offender whom she had known for some years. She had known him in a variety of contexts and countries. She also said, as I have referred to earlier, that she was also able to identify a birthmark on his stomach area – and I will refer to that evidence below. 30 During that period of time or during the interview on 27 September with various police officers, the police asked her for her clothing that she had worn during the attack on her. 31 The victim said that she had the clothing but she wanted to retain it because she was uncertain what the police officers were going to do with it. 32 That attitude needs to be viewed in the light of the experience Ms NH had had with the police in her own country, what had been reported to her about the police in Syria looking for her, and her contact with various uniformed representatives of the Australian government and its agencies when she had been variously transported from Ashmore Reef to the Woomera Detention Centre and then the Villawood Detention Centres. 33 The relevant police in New South Wales were understandably concerned about that, but, sensibly, in my view, and compassionately, did not press the issue as their main concern at that time was for the welfare of the victim. Subsequent Events 34 In terms of subsequent events, Ms NH was telephoned by the offender on a number of occasions. She said that he made threats to her along the lines that if she contacted anybody, and, in particular, government bodies, that he would kill her. 35 One such threat was that if the victim said anything to anyone in authority and given that she still had family and relatives in Iraq that he had a cousin who 'was a big manager in a government body, who could vanish her family' (See T 17/4/07, page 57 line 43). 36 The threats made on a later occasion included a reference to the offender contacting Chinese persons who would obtain drugs and inject and kill her (See T 17/4/07, page 54 line 14). 37 Further threats were made by the offender to the victim on later occasions, and I will deal with those hereafter. 38 The offender subsequently visited her at her home and, on her evidence, removed from her accommodation various items of furniture that she had been provided with by some relief agencies, including a chair and a table. She said that he reiterated the threats he had made to her previously. Subsequent AVO Proceedings 39 The victim then instituted apprehended violence order proceedings with the assistance, it would seem, of various relief agencies she was able to obtain an interim order. This appears to have been continued by a magistrate on the basis that the offender did not make any admissions to relevant factual matters. 40 There was no finding of fact against him as I understand the position. However, it was clear from his evidence during the trial that he understood that he was to remain away from her. 41 Some three years later the victim went to the police. At that stage she produced, in response to the police requests, the clothing that she had retained from that period after the incident. Tests were carried out on the clothing produced by the victim. 42 The offender was apprehended on his return from overseas. DNA 43 Ultimately the offender's buccal swab, which he gave voluntarily on 23 July 2005, as well as semen located on the victim's underpants, were analysed by the Department of Analytical Laboratories at Lidcombe. 44 The evidence of Ms Trubuio, from that Department, based on an analysis of the swab of semen was that the probability of a person having a DNA profile recovered was one to 1.3 billion compared to a person taken at random from the general population. 45 The jury were given a direction in relation to the use of the DNA evidence and in particular the error of relying upon statistical probabilities to draw a conclusion. 46 That history should be given before I recount an interview which took place of the offender by the police. As I have said, the offender was interviewed on his return from overseas. Credit 47 Given the way the case was presented, and the complete denial by the offender that the incident or any aspect of it had taken place, the credit of the victim and of the offender was clearly to the forefront of the trial and before the jury. Victim's Account 48 In terms of the victim's accounts those were, in my view, essentially consistent on all relevant matters and consistent with the objective DNA evidence on her underpants. Offender's Account 49 The offender's evidence in relation to the incidents were as contained in his interview with the police and his evidence in the trial. 50 He denied, both to the investigating police and in Court in the trial, that any act of intercourse had taken place or indeed that he had been present at the Warwick Farm unit. 51 He also denied that he knew Mr Zohair or that any of the incidents had taken place. Offender's Understanding of English 52 In any such case involving competing credit issues, there is a particular need to assess the relevant understandings of English between the principal witnesses, especially in relation to the issues in dispute. 53 In the trial, both the complainant (the victim) and the accused were assisted by qualified interpreters. 54 The offender is a university-educated individual. He had been a lecturer at a university in Bagdad for some thirteen years. He had been living in Australia since, it would seem, about 2001 and had operated a business in the intervening period. 55 I have reviewed over the intervening period all the evidence in that light and examined the evidence given by the offender to the police in the record of interview conducted with him. I have borne in mind that the interview was conducted in the early hours of the morning when the offender had just returned from a long trip from overseas. 56 Even taking into account the offender's difficulties with the English language, his account of how semen, from which a DNA sample consistent with his, had been obtained on the underpants of the complainant was difficult to accept. 57 That difficulty, in my view, did not, and does not, arise from any misunderstanding or lack of comprehension of the basic issues being discussed. As I have said during the course of submissions, in my view the offender is a man of considerable intelligence and indeed insight, consistent with a person who was not only a lecturer at the university for some thirteen years, but who has been able to survive and indeed prosper while he has been in this country. 58 The offender's account was that he had apparently had sex with prostitutes while living in Canterbury Road. He had held a barbecue in his home in or near Canterbury Road where he was living at the relevant time and on one such occasion the victim had been present. Also present at the barbecue was one other individual who was not identified at any other stage. 59 The offender had said that during the course of the barbecue he went out into Canterbury Road, brought one of the prostitutes back into the room and had sex with her in the presence of the victim. In that regard the independent evidence that Ms NH was a devout Muslim woman is something that needs to be borne in mind. 60 How the DNA sample went from the offender to the prostitute and then came back into the possession of the victim and onto her underpants was not at any stage made clear. Interview of Offender by Police 61 During the course of the offender's interview with the police he was asked whether intercourse had occurred with the victim in the context of her account. His answer was: Question 59: "Q. Have you ever had sexual intercourse with N? A. She has any evidence to the contrary, she can prove it." Question 61: Q. Have you ever met N at Warwick Farm? A. Never. She has any evidence to substantiate that, she can produce it...my address because I had a shop at..." 62 The offender asked whether the incident was said to have happened before or after the complaint made in relation to the AVO proceedings. On being told that it was before those proceedings he asked why the victim had not made any complaint in court of those matters. 63 The offender agreed that he had seen the victim in the Villawood Detention Centre. 64 He denied, as I have said, knowing anyone called Zohair or knowing anyone who was a friend who lived in Warwick Farm. In answer to the question whether he had ever met the victim at Warwick Farm he said: (See question and answer 61): "if) she has any evidence to substantiate that, she can produce it..." 65 The offender was also asked whether there was any reason why his DNA may have been located either on the victim or on her clothing. His answers were as follows: Question 94: "Q. Okay, would there be any reason why your DNA would be found in her underwear? A. Of course not." Question 95: "Q. Okay, would there be any reason why your sperm would be found in her underwear? A. Of course not." 66 Presumably, at that stage the offender felt secure in his belief that there had been no reference to any such items of clothing, or indeed his DNA, in the earlier AVO proceedings. 67 As I have said, the offender voluntarily provided a buccal swab at the request of the police and it was that swab that was used as comparison evidence from the DNA analysis point of view. 68 At trial the offender gave evidence as to how his DNA came to be on the victim's underpants. The opportunity was given to him by the crown prosecutor to provide his account and that was as follows: (T 20/4/07 p 357 line 13): "Q. This is exhibit 1. You are not suggesting are you and please if you are just say so, that these are the underpants that were worn by the prostitute on that day are you? A. This is a story that goes back to about five/six years. I mean, I have been practising sex for years so you expect me to remember? Q. You are not suggesting are you to the members of the jury that somehow Ms NH got hold of these underpants on that day are you? A. When you say on that day? Q. Well whatever day it is that you say she came to your home for a barbecue at Canterbury Road? A. What I'm saying is that there is a possibility that these Lebanese girl, the one I talked about before, perhaps that was hers." and (T 20/4/07 p 359 at line 19): Q. Maybe and maybe just not perhaps, but truly what really happened is that you had sexual intercourse with her didn't you and that's how those underpants got stained the way they got stained? A. No this is not correct and the proof to that is what you say there was a person, a male in there, who was with me at the time, this is what you say. Where is that person? Victim's Evidence and Presentation 69 As I say, this evidence as to what is said to have occurred with the prostitute in Canterbury Road and of course at the barbecue and the transference of the semen needs to be viewed against the background of the offender's evidence that he was aware that the victim was a Muslim woman, and, as I say, her evidence and the evidence of the welfare worker attached to the Marian Centre, Ms Chaloupka, that, at the time, the victim was a devout Muslim woman. 70 Ms NH gave evidence in court over a period of about three days. She relied on a walking stick for her movement – as she apparently had since she had been in the detention centre. She was partially bent over and she moved very slowly. None of her actions or evidence were, in my view, in any way feigned or exaggerated, nor indeed was her account of the actual incident or the surrounding circumstances or of what had happened to her in Iraq or subsequently. 71 That history has also been obviously examined by other tribunals and authorities, including the migration authorities and tribunals of this country. The results of those investigations had been made available to the defence. Verdict 72 The jury took less than half an hour to return their verdict. The jury were directed on a number of occasions not to let any sympathy they may have for the victim to cloud their assessment of the evidence. 73 I should indicate for these purposes that I accept the evidence given by the victim, subject to those matters where there are some minor conflicts between her evidence and the accounts given to the police. Those differences I consider to be explicable on the basis of her anguish and borderline hysteria which might have been present when she gave her account to the police on the 27 September 2002. 74 In turn, her reaction also needs to be viewed in the light of the fact that she was at that time essentially still on her own in a foreign country. She had had the experiences she had had with authority figures and police in Iraq as well as in Australia over the preceding three years. Other Evidence 75 In terms of other evidence at the trial, police evidence was given as to the attempts made to contact Mr Zohair and I emphasise, in case there is an individual by that name, that he did not give evidence and the accusations involving him have not been tested. 76 Evidence was also given by the offender's wife and son as well as his former partner in the bakery which he operated at Fairfield. 77 The offender said that the victim's recognition of his birth mark in his stomach area was able to be made by her from when she had seen him, apparently without any clothing on, or at least on the upper part of his torso, while working at the bakery. Evidence of him wearing or not wearing such clothing while he was working at the bakery was not led from Mr Idris Saleh, his former partner at the bakery, when Mr Saleh was called to give evidence by the defence. 78 In my view the evidence given by the offender was fanciful and rightly rejected by the jury. Evidence on Sentencing Proceedings 79 In terms of evidence on the sentencing proceedings, tendered on those sentencing proceedings was a pre-sentence report dated 15 June 2007 prepared by Simon West of the City office of the Probation and Parole Service. 80 That report noted that the offender was aged fifty-three, his date of birth being 1 July 1954, and of Iraqi background. He came to Australia illegally from Iraq via Syria. He was detained in a detention centre from 1999 to 2000. He was granted permanent residency status in 2004. His family, being his wife and four sons, the youngest of whom is about the age of ten, arrived in Australia in December, 2005. 81 As I have said, in Iraq he was a university lecturer in Baghdad for some thirteen years in cost accounting, a specialised field. Since arriving in Australia he has set up a number of businesses. He asserted that he knew the victim, they both being Iraqis, when they were living in Syria. He said he maintained a friendship with the victim once they had both become resident in Australia. 82 The report notes that the offender is a man of considerable personal resources - which is my observation of him - in addition to my observation being that he is a person of considerable intelligence and someone who is able to adapt quickly to situations. 83 The report also notes that the offender has maintained that he was not guilty and accordingly has expressed no remorse. 84 Also tendered in these proceedings were two references. They were marked Exhibits S7 and S8 and they came from Mr Mohamed Al-Darragi, the chief editor of an Arabic newspaper, and Mr Hasein Al-Etabi, the general manager of a motor-works. Both deposed to the offender's care for his children and family, a person being of good character and that each of the referees say that they find it hard to imagine that he committed such a crime. 85 In addition, Mr Al-Etabi says that Mr Al-Shawany has ties in the community such that there are various businesses and families - he says twenty-four families - dependent on his business as well as his wife and his own family. Sentencing Options 86 In terms of sentencing options, the probation and parole report says that the offender has been assessed as suitable for a community services order (although no developmental program would be available for him) but that he is ineligible for a periodic detention order. He is assessed as suitable for a high level of intervention on his release back into the community. However, the report notes that the offender's suitability for some treatment options may be restricted because admission of guilt is often a prerequisite for inclusion in the treatment programs offered in custody and in the community. 87 In any event, I am satisfied from the evidence at the trial (and I think this was conceded appropriately by Mr Galloway, the solicitor who appeared for him on the sentencing proceedings) that the nature and circumstances of this offence are such that sentences of full time custody, in this case, are both mandated and appropriate in all the circumstances. Standard Non-Parole Period 88 Submissions having been made by counsel in relation to the standard non-parole period, I should deal with those now so there is no doubt about it in Mr Al-Shawany's mind. 89 Pursuant to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 there is a standard non-parole period of seven years for that offence. This division, however, applies to offences which were committed on or after 1 February 2003 and is not applicable in this case in my view. 90 The maximum sentence for the offence at the time was one of fourteen years imprisonment and that would be regarded as a statutory guidepost or reference point available for this offence and in particular for worst case offences. 91 The law is that statutory maximum penalties are regarded as an expression of the policy of the legislature in providing for the offence (R v Oliver (1980) 7 A Crim R 174 at 177; Gilson v The Queen (1991) 172 CLR 353 at 364), or as a reflection of the seriousness of that offence in relation to, as I say, "worst type of cases" (R v H (1980) 3 A Crim R 53 at 65). It has been reserved for the "worst type of case falling within the relevant prohibition": Regina v Tait and Bartley (1979) 46 FLR 386, R v Fernando [1999] NSWCCA 66 at para 227 and Ibbs v The Queen (1987) 163 CLR 447, although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it is possible to envisage a worse case: Veen v The Queen [No 2] (1988) 164 CLR 465 at 478. 92 The defence concedes that while I am not bound by the standard non-parole period imposed with effect from 1 February 2003 I can have regard to that period. However, my view is that I need to determine the sentence in accordance with the law that was applicable at the time, which includes sentencing authorities at that stage, and the maximum period which was in force at that time. Section 21A Factors Aggravating factors 93 In terms of the other aggravating factors under s 21A, the offender had driven the victim to premises in the company of Mr Zohair. The two of them had contacted the victim previously it would seem. 94 But to ensure that there is no infringement of the principles outlined in the decision of De Simoni (1981) 147 CLR 383, I emphasise that the offender was on his own when the actual acts of intercourse took place. This was not an assault in company. 95 In my view, there was clearly a significant degree of planning and premeditation, again in the context where the offender must have known that his invitation to the victim would have been accepted in the circumstances where she would have been desperate to obtain news of her family, and particularly her husband and children. 96 The offender's invitation and the consequential arrangement was one that he knew she could not refuse. Moreover she was entitled to trust a person who had expressed his intention to make known to her details of her family in Iraq. 97 The offence took place in an area of a block of apartments with which the victim was not familiar and from where she could not call for help. Her vulnerability was exacerbated by her health, the fact that she had had a stroke, and her relative immobility. 98 While the victim felt something pressing into her back throughout the act of intercourse she did not identify what that object was, particularly when she was ultimately able to turn and see the offender after he had finished the acts of intercourse. I do not find on the evidence that there was any weapon used in the offence. 99 The apprehended violence orders which were the subject of a consent extension on a without admission basis post-dated the offence. In any event, as I have said, those acts which gave rise to those orders have not been the subject of any other judicial or court determination and I do not take them into account. Victim Impact Statement 100 What was important in the proceedings today was that there was a victim impact statement tendered and accepted by the court pursuant to the relevant provisions of the Crimes (Sentencing Procedure) Act. That statement was dated 27 May 2007 and was read in open court at the request of the victim by her representative, a person who had accompanied her to court on other occasions. 101 I will not read all the statement but some matters should be put as part of the public record forming the relevant factual basis on which these sentencing proceedings took place. It is clear from the decision of the Court of Criminal Appeal in R v Slack 2004 NSWCCA 128 at para 62 that these are matters which can be given weight within the discretion of the sentencing judge. 102 The relevant paragraphs are as follows: "When this terrible thing happened to me, I felt if I'm dead it's better. I felt like a piece of dirt. This problem can never disappear. It stays with me all my life. Nothing makes this problem go away – nothing. My family, they think I'm a strong woman and I can do anything and they can do anything because their mother is a good woman, but now inside I'm like dead, I'm so ashamed. It is better if I'm dead. Before I'm not afraid of anyone. Even when Saddam Hussein put me in jail, I'm still strong. I know I'm a good woman and my family know I'm a good woman. Now, I'm afraid, all the time I'm afraid. If I see people, what do they think, what will they do? In Iraq, if a woman has this big problem it's a big, big problem for her family for hundreds of years. Never, never does this problem go away. It's like badge on her family – never anyone can get rid of it. People say if the mother is bad, all the family is a bad family – better if they all dead. Like a cancer – must cut it out and get rid of it." 103 There are various references such as this to the situation in Iraq. I interpolate to say that there is no evidence before me of the legal position in Iraq, save and except the exchange which took place before I commenced these remarks on sentence to the effect that the Iraqi criminal code as it was at that time certainly provided for protection for people in these circumstances. 104 It would seem however, that this victim impact statement goes to the victim's perception of the familial community and cultural perception of what had taken place and her fear that has resulted to her. The victim goes on to refer to her husband being angry. He would not speak to her for some two or three months, and she said she was very afraid because she did not know what to do. 105 She said: "I am so afraid of police. It is very hard for me to tell the police here about my story. I was very scared to say something. I didn't know what they would do to me. But my husband said to tell them the story so I did, but I was afraid so much. My husband was so angry with me for bringing this big problem to all the family. When this big problem happened I couldn't sleep. Every night I was awake crying. I felt the walls of the room coming in and crushing me. I didn't know what to do. My mind was gone. Sometimes I didn't know where I was. And still I can't sleep and all the time I feel tired. I've got high blood pressure and diabetes. Sometimes I feel weak and dizzy. Sometimes I can't eat. It's like something is heavy on my chest and something is broken inside me. I feel like I hate myself - for why am I alive? I came to Australia for freedom and Abdul Reda took that freedom away – he killed me. I thought that I can give my family a safe life, a good life here in Australia where my children can study and finish their university and work hard. In Australia there is peace and good laws to protect people, and Abdul Reda has taken away freedom from us all. It is like we are all in jail." 106 There are various other comments made about her fears and the situation of Muslim law and, as I say, there is no evidence before me as to those precise legal positions. 107 Nevertheless, what is clear from the victim impact statement and indeed my observation of Ms NH when she gave evidence during the course of the trial, and my observation of her when she was in the back of the court during these sentencing proceedings, to the limited extent that that is permissible, but certainly my observation over the period while she was giving her evidence in the trial was that the emotional harm she suffered was substantial - more so because of her age, her familial background, her high level of intelligence and sensitivity, would be more so than that normally experienced by victims going through such a terrible experience. 108 As I say, the contents of the victim impact statements are very much consistent with both the content and tenor of the evidence she gave at trial. Hatred or Prejudice against a Particular Religion 109 There is then the difficult matter of assessing whether this act occurred and arose out of hatred or prejudice against a particular religion. 110 S 21A(2)(h) of the Act refers to a possible aggravating factor being that: "The offence is motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)". 111 It seems clear to me from the evidence, and I so find, that the offender was motivated by the fact that he was of the Muslim faith and so was the victim. Further, that she was going outside that religious or cultural grouping of which they had previously both been a part. 112 It is a matter of the strongest inference, and indeed I think the only inference I can draw, from the accounts given by the victim, which I accept, that the offender's motivation to sexually assault her was because either she had been reading the Bible, or a Christian Bible, or associating with Christian people, and was therefore seen in some way as being an 'infidel', and therefore in some way the assault on her being justified. 113 As I say, having reviewed the evidence a number of times and having observed the complainant as she gave that evidence in the trial I accept it and I can see no other credible reason or explanation for the comments of this particular nature, given the background of these two individuals and the history of their interaction, and given the proximity to these comments after the act of intercourse, given two people of this age and in these circumstances. 114 I do find that that is an aggravating factor under the Act. Mitigating Factors 115 In terms of the mitigating factors, the offender is a man of fifty-two, his date of birth, as I have said, being 1 July 1954. Importantly he comes to this court as a person with no prior convictions. 116 He is a married man with four children. He has established himself in the Australian community. He has attempted to set up businesses in both a bakery in Fairfield, with his former partner, he has conducted a trolley servicing business in the Bankstown shopping centre, and it would seem there are a number of people and families dependent on him and his resourcefulness. That is to his credit. Remorse 117 The pre-sentence report makes clear that there is no acceptance by this offender of his guilt, notwithstanding the jury's verdict. No remorse has been expressed. Criminality 118 In terms of my assessment of the criminality, on the evidence before me the offence happened in circumstances where there was clear planning and pre-meditation by the offender. 119 It involved him inveigling the victim to a block of apartments in an area with which she was completely unfamiliar into a flat which was not known to her and with which again she had no familiarity. 120 She was a very vulnerable person, both because of her health, her immobility resulting from the stroke she had had in the recent past, a fact which must have been known to the offender, her limited social support network of persons to whom she could turn for help and her dependence on the offender, as she thought, for news of her family. 121 The offender's evidence is that he had befriended her, he had visited her in Villawood, and that had followed the earlier stroke she had had when she clearly dependent on a walking stick. Her vulnerability must have been known to the offender, especially given the circumstances of her departure from Iraq and his familiarity with her, at least while she was in Syria, and again when he had visited her in the detention centre. 122 He must have known as would any person who had been a refugee in this country, that she would have been desperate for news of her family, her husband and her children. 123 He must have known that she was in the physical condition she was in at the time of the offence. 124 The actual offence did not occur in company, but I accept the victim's evidence that both the offender and another person were present on the day when she was accompanied from the Warwick Farm station to the unit so that she could obtain letters about her family. 125 Against that background, the victim was essentially defenceless, and, as must have been clear to the offender, would not have taken, nor have been able to take, any kind of precautions to either protect herself from the attack which occurred, or to quickly escape. 126 The act of using the victim's hijab to tie her face would have been a particularly frightening experience as well as the fact that that had happened while there was something pressed into her back, which she thought was a knife. (T 17/4/07 p38 line 29): "Q. What happened to you when you were hit on the head? A. When I was hit on the back of my head, I fell onto a sponge"-- (or a mattress I interpolate) "--of some sort and he put something to my back, I don't know whether it was a knife or anything else but it was put towards my back." 127 What occurred was a degrading, humiliating, sudden and brutal attack on a woman who had had a stroke and was walking on a walking stick at the time of the offence, who the offender knew was essentially alone in this country and separated from her family. What occurred was entirely unprovoked and involved an act of unprotected vaginal intercourse and anal intercourse. 128 I find that the range of criminality is at least of mid-range. Consideration 129 In terms of my other considerations, notwithstanding the offender's exemplary record before this incident, as well as his personal circumstances, in my view the facts of this offence and the clear criminality involved mean that a condign penalty by way of a prison sentence is called for. 130 Even considering the absence of any prior convictions and his age and his other impressive personal circumstances, I do not consider that any other sentencing option is appropriate here. 131 In particular, the purposes of sentencing require a strong message of general deterrence to the community that victims in these circumstances who are vulnerable, particularly when that is known to the offender, must and will be protected. 132 Moreover, I make specific reference to the fact of any question of cultural conditioning. That has not been put by Mr Galloway and I think appropriately so, taking into account the decision of R v MAK [2005] NSWCCA 369. This is not a situation where there should be any easy generalisations. I am sentencing this offender in relation to the particular circumstances of this offence and on the evidence that has been produced both in the trial and on these sentencing proceedings. 133 But the evidence given by the offender should be stated in this regard, and I am quoting from the transcript on 20 April 2007 at page 336: "Q. You would agree that sexually assaulting a woman, raping a woman, is one of the most degrading acts that can be committed against a woman within your culture? A. Of course I know. Q. You would agree would you not that within your culture that a woman who had been so violated would be subjected to criticism by other persons within her tribe for instance? A. Of course this is our culture and I know that. Q. It's the case isn't it that a woman who had been sexually assaulted, who had been raped, you knew would feel great shame? A. Yeah what you say is correct for an Iraqi woman. 134 I accept, and find, on the victim's evidence that immediately after the act the offender said to her "Let your Christ benefit you". I find that was a clear reference to what the offender had remarked to her in the presence of other people about her association with others of a non-Muslim background while in the detention centre. 135 It is not for the court to speculate on the offender's sexual or other motivation for what he did, particularly in the context of his own evidence that he was visiting prostitutes at the time. But, as I have indicated, absent other evidence, there is a strong inference in my view, that what he did was an attempt to enforce his religious or cultural views on his former country-woman and co-religionist. 136 In my view, the sentence imposed must reflect a strong element of general deterrence with a specific message that such behaviour is completely intolerable and totally unacceptable in this community. 137 I take into account the maximum penalty for the offence imposed by the legislature and the indicative value of that maximum considered in relation to my finding of the criminality involved. Pearce Factors 138 I then turn to the fact that there are two acts of intercourse involving the same victim at essentially the same time. 139 However, the acts of intercourse were different in nature and involved the offender turning over the victim and subjecting her to anal intercourse. 140 In R v Russell (unrep, 21/6/96, NSWCCA) the court held that anal intercourse is particularly "degrading", and that was cited by Dunford J at p4: "The nature of the offences is further aggrvated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstance is of its nature always degrading." 141 In my view there must be and needs to be a partial accumulation of the sentences to mark this aspect of what is essentially a different kind of intercourse having the degrading aspects referred to by the Court of Criminal Appeal. 142 In my view, having considered the totality of the circumstances the appropriate degree of partial accumulation should be of the order of six months. 143 The fact that a victim may be tied up or that the offender ejaculated into the victim are circumstances which may aggravate the offence. That is referred to by the Court of Criminal Appeal in the decision of R v BUS (unreported, CCA, 3.11.95). 144 Here, while the victim was not tied up, she was certainly restrained by having her hijab wrapped around her face by the offender at a time when, as I say, she was partially immobile. She was also ejaculated into. 145 That needs to be viewed in the light of the offender's evidence as well that he was having sexual relations with prostitutes at Canterbury Road at the relevant time. JIRS Statistics 146 In terms of the JIRs statistics, I have referred counsel to those statistics for offences, with the fields available being restricted, having regard to the limited use to which such statistics can be put, bearing in mind that the facts of those relevant offences are not known nor the personal circumstances of the offenders. 147 In my view, the range of sentences imposed for these offences are such that I consider they are within the proper range for the exercise of my discretion. Comparative Sentences 148 I have also taken into account two decisions of Baverstock [2003] NSW CCA 228, a decision where there were a number of counts where a person, a wife of an overseas origin, was tied to a bed, she was vulnerable due to her temporary visa status; and the decision of Walker [2006] NSWCCA 228 where there were three acts of intercourse with the ranges of six years and six months with a non-parole period of four years and six months for each count. 149 I have considered the sentences imposed in these matters against the varying factual situations and the personal circumstances of the offenders. In my view the penalty I am proposing is appropriate and again within the proper parameters of my sentencing discretion. Special Circumstances 150 In terms of special circumstances, submitted on the offender's behalf as to special circumstances were the following: 151 As I said, he is aged fifty-two, or fifty-three, and is married with children. He has the business and family ties that are referred to. This is his first time in custody and it will be a particular hardship to him given his age, his lack of English which is likely to make prison life more difficult - as is referred to in R v Pastovsky NSW CCA 28.6.1996 - as well as the real possibility that he may be admitted to a protective custodial environment. That is a matter of speculation, but I think it is a reasonable possibility in the circumstances of this offence. 152 There does not seem to be any other matters in relation to rehabilitation that I can take into account given the offender's attitudes as expressed - particularly as to the absence of any remorse or the refusal to accept any guilt in these circumstances - sufficient to make other than a marginal adjustment to the statutory ratio which the non-parole period bears to the parole period. 153 In my view, having considered the matters that I have spelt the adjustment should be of the order of sixty-six and two-thirds per cent. Commencement Date 154 In terms of the commencement date, the offender was taken into custody when the jury's verdict was delivered on 24 April 2007 and his sentence should commence from that date. Sentence 155 On the two count on which the jury brought in a verdict of guilty the offender is convicted on each count. 156 On count one the offender is sentenced to a period of seven years imprisonment to commence on and from 24 April 2007 and to expire on 23 April 2014, with a non-parole period of four years and six months to expire on 23 October 2011. 157 On count two the offender is sentenced to a period of seven years imprisonment to commence on 24 October 2007 and to expire on 23 October 2014, with a non-parole period of four years and six months to expire on 23 April 2012. 158 Thereafter the offender is to be released to parole on 23 April 2012. 159 There will be a six months accumulation on count 1 so that the total effect of sentence is one of seven years and six months imprisonment to commence on 24 April 2007 and to expire on 23 October 2014, with a total non-parole period of five years imprisonment to commence on 24 April 2007 and to expire on 23 April 2012. 160 The total period is one of seven years and six months, and five years non-parole period. ********** 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.