R v Mohamed SABRA [2011] NSWDC 161

District Court New South Wales

Medium Neutral Citation: R v Mohamed SABRA [2011] NSWDC 161 Decision date: 11 February 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: For the offence against s 61M Crimes Act 1900 a non-parole period of eighteen months and a balance of the term of 6 months. For the first offence against s 66C Crimes Act 1900 a non-parole period of seventeen months and a balance of the term of sixteen months. For the second offence against s 66C Crimes Act 1900 a non-parole period of eighteen months and a balance of the term of fifteen months. Catchwords: CRIMINAL LAW - sentence - aggravated indecent assault of 14 year old schoolgirl by limousine driver - victim under 16 - aggravated sexual assault victim between 14 and 16 - pre-sentence, psychological and psychiatric reports - victim impact statement - plea of guilty entered at time of trial - prior criminal record - whether adverse publicity in newspaper should result mitigation of sentence - otherwise person of good character -good prospects of rehabilitation - unlikely to re-offend - Legislation Cited: Crimes Act 1900 s 61M, s 66C(4); Criminal Case Conferencing Trial Act 2008; Crimes (Sentencing Procedure) Act 1999 s 5, s 21A(2), s 21A(2)(cb), s 21A(3)(i), s 23A(2)(g); Category: Sentence Parties: Regina Mohamed Sabra Representation: Mr Grogan for the NSW Director of Public Prosection Mr Coroneos for Mr Sabra File Number(s): 2009/155769 Publication restriction: STATUTORY NON-PUBLICATION OF IDENTITY OF COMPLAINANT

Judgment 1 . I am sentencing a thirty-four year old limousine driver who drove a customer he knew to be a fourteen-year-old schoolgirl to a quiet location where he supplied her with alcohol and then sexually assaulted her when she was under the influence of that alcohol. 2. As a result that man - Mohamed Sabra - was arrested and charged by the police with three crimes. The crimes are these. Aggravated indecent assault, the victim being under sixteen, is a crime against s 61M(1) of the Crimes Act 1900 and carried at that time a maximum penalty of seven years imprisonment. Parliament regards that crime as so serious that at the relevant time it had fixed a standard non-parole period of five years to that crime. The other two crimes were both aggravated sexual intercourse with a person between the ages of fourteen and sixteen. They are offences against s 66C(4) of the Crimes Act and carry a maximum of twelve years imprisonment. That offence does not carry with it a standard non-parole period. 3. It is important when a judge sentences an offender for the judge to set out a brief account of what happened giving rise to the crime so that there is a public record of what behaviour the offender is being sentenced for. In this case the crimes occurred on a Saturday night, 6 December 2008. Mohamed Sabra owned and operated a limousine company named Sabra Limousines. He knew the victim of these offences. I will refer to as X because it is illegal to publish her name outside this courtroom. Mr Sabra had met X and driven her and a school friend to a concert about a month beforehand. On that occasion Mr Sabra learned that X was fourteen. 4. On the night that Mr Sabra committed the crimes he picked up X and some friends from a party which they had attended at Bondi. X had been drinking alcohol at the party but there is no evidence - and I accept that - Mr Sabra knew that. During that day Mr Sabra and X had spoken to one another and made an arrangement for Mr Sabra to collect her. He picked her up at about half past nine and drove them around. Mr Sabra then told X that he had an appointment to pick up the singer named Kanye West. Apparently X was a fan of this singer and Mr Sabra told her that she could go with him and the facts - which are agreed between Mr Sabra and the prosecution - go on to record " but that there would not be enough room for her friends ". 5. X agreed and they drove into the city. Mr Sabra stopped to pick up some Red Bull energy drinks. He got a champagne glass from inside the car and mixed the Red Bull with vodka. The vodka was also in the car. He offered it to X and she eventually drank it. She then started to feel affected by the alcohol. 6. What happened next is that Mr Sabra drove to an area and stopped. X believes that it was somewhere near the Art Gallery of New South Wales in the Domain. 7. Mr Sabra said that he had a sore neck. He asked X for a massage, which she did. Mr Sabra then started massaging her shoulders. X got into the back seat and laid down. She passed out. When she awoke she found Mr Sabra's head was between her legs. He had his hand on her breast. He was licking her vagina. She felt his finger inside her vagina. 8. The touching of the breast amounts to the aggravated indecent assault and the licking of her vagina and the placing of his finger inside her vagina constitute each of the aggravated sexual intercourse offences. 9. As soon as she realised, X pushed Mr Sabra away and said " Why would you take advantage of me? " Mr Sabra replied by using her first name and asking " Why are you crying? If you didn't like it why didn't you stop me? " X continued to cry and Mr Sabra drove off with her because she asked him to take her home. She received a phone call from one of her friends and reported what had happened. She asked Mr Sabra to stop the car which he did. X complained to a passer-by. She then got back into the car and later Mr Sabra stopped the car so that she could use a bathroom in a hotel. She came back to the car and asked to be taken to Pyrmont where Mr Sabra dropped her off. Her friends were there. 10. A few months later, on 19 February 2009, Mr Sabra was arrested. He was later charged with these offences. 11. It is also important for a judge in sentencing an offender to have an appreciation of information which is personal to the offender. That comes from a number of sources in this case. 12. There is a pre-sentence report prepared by the Probation and Parole Service. Mr Sabra was born in Lebanon and came to Australia when he was seven. His parents separated when he was ten and he was raised by his mother. He had and still has a close relationship with all his family members. 13. He married. He has been married for some eleven years and he has two children. When the report was written they were eight and three. Understandably his marriage suffers from the strain of his offending behaviour. Mr Sabra described himself to the Probation Service as a moral and ethical family and community minded person. He was involved in various community activities. He finished year twelve at school and did a computer hardware engineer course. He joined his father in the family business of a limousine company. He had other businesses as well. 14. He claimed to the Probation Officer when he was interviewed that he did not know that the victim was under sixteen. The report is dated 1 December 2010, so it appears that up until a short time before then that was the position he was asserting. The report also noted that he " did not entirely agree with the police facts." Nevertheless the report went on that he " appeared to take responsibility for his offending behaviour. " The report concluded that Mr Sabra " presented as a confident and pleasant young man who, aside from raising two young children, appeared to be heavily involved in numerous business enterprises and community projects. Given his purported high moral standing and ethical commitment, it is difficult to understand his poor judgment and short sightedness in what would appear to be a normal evening of work in his line of business. " The reporter thought that he was suitable for a low level of intervention from that service. 15. There are reports from a forensic psychologist and two psychiatrists. The forensic psychologist Mr W John Taylor saw and assessed Mr Sabra on 25 November last year. Mr Taylor concluded that the tests were consistent with Mr Sabra not having any personality disorder, nor any emotional disturbance. Mr Taylor thought that Mr Sabra's " lack of sensitivity " for the victim was a factor " which contributed to his offending behaviour, along with his tendency towards risk taking behaviour ." Mr Taylor thought that Mr Sabra has a " low risk of general and violent recidivism and a low/moderate risk of sexual recidivism." Mr Taylor thought he had good prospects for rehabilitation which would be assisted by psychotherapy. 16. Mr Sabra was also seen and examined by a forensic psychiatrist, Dr Olav Nielssen, who interviewed Mr Sabra on 22 November last year. Dr Nielssen noted a history which included Mr Sabra saying that " as far as he was able to tell the girl invited him to make the advance and he did not go any further after she asked him to stop ." He went on to tell Dr Nielssen that X was " very friendly " and " very flirty " in her behaviour. He told Dr Nielssen that he interpreted that to be sexual attraction and that she wanted him to make a sexual advance towards her. He said one thing led to another and the offences resulted. 17. When asked about why he committed the offences, he told Dr Nielssen that "he assumed it was something about her behaviour and circumstances that led him to believe that she arranged to be in the car with him by herself." Dr Nielssen did not find any psychiatric disorder. He also expressed the opinion that Mr Sabra " carries a low risk of further offences of any kind ." Dr Nielssen noted that Mr Sabra " expressed a high degree of shame and remorse for his behaviour." 18. I should add, before turning to the next psychiatrist, that Mr Taylor also recorded regret expressed by Mr Sabra described as " going that extra step and cheating on my wife ". Mr Sabra told Mr Taylor he was " wicked that minute. I regret it because of the way the girl feels now. She would feel angry and betrayed ." He acknowledged to Mr Taylor that he was responsible and that he was " older than her and more mature and I should have backed up and not gone ahead." 19. Mr Sabra saw a consultant psychiatrist Dr Adam Martin who arranged to see him for weekly psychotherapy. Dr Martin noticed that Mr Sabra " appears genuinely distressed by what occurred and feels ashamed, and is concerned about the future consequences for his family." 20. X prepared a victim impact statement in which she recorded her reaction to being the victim of these crimes. She reported herself as feeling anxious, isolated and frustrated. She has difficulty sleeping. Amongst other things she feels " sad, frustrated and angry that this had happened to me at such a young age. I feel he took away my innocence." She reported nightmares and concerns about safety issues. She reported the social impact of the crimes. It became a topic of discussion amongst her peers, she was subjected to "sexual assault jokes, rumours and gossip." She wanted to move schools, finding that she felt completely isolated. She found it hard to focus on her year ten schoolwork. This she says was evident in the drop in her marks. She said she " lacked motivation, was constantly tired (from difficulty sleeping) and often missed days of school, which furthermore affected my school certificate results ." 21. Before Mr Sabra pleaded guilty these charges had been listed for a defended hearing in this Court. X goes on to say that when the trial was due to commence in 2010, that was the year she began her year eleven. She said that due to frequent delays " I missed weeks of school." She said that she was " unable to complete my year eleven final exams and my assessment week as these coincided with the Court trial dates ." She said that due to " under achieving at school and regularly missing school, I was unable to complete subjects I wished to do for my senior years." She said she still feels dirty and the crimes have affected her body image and she has lost confidence in her appearance. She concluded by saying that she finds it " hard to trust people and feel little self worth. I have had a lot of setbacks because of the assault, such as school marks declining, which prevented me from continuing my subjects of interest, the emotional abuse from peers and have had to attend regular counselling sessions to address many of these issues." 22. Mr Sabra has a criminal record. There are two entries in the record. They are both offences of importing a prohibited import which are Federal offences. On 9 June 2009 he was convicted of both of those offences and fined $1,000 in respect of each charge. Both Dr Nielssen and Mr Taylor in their original reports, which I have already referred to, recorded Mr Sabra as having no convictions. Dr Nielssen in a later report said that once he was told about the two convictions " that did not have any effect on my opinion regarding the absence of any psychiatric disorder, and does not effect my opinion regarding Mr Sabra's remorse, his risk of committing any further offences and his prospects for rehabilitation ." Mr Taylor also wrote to say that the previous offences that he was told of " does not alter the opinions expressed in my original report ." The prohibited imports comprised a particular form of human growth hormone. They had both been addressed to Mr Sabra using the name " Michael Rossi ". Both offences were committed in March 2008, about a week apart. 23. There was also admitted into evidence as part of Mr Sabra's case an article which had been published in the Sunday Telegraph of 23 January 2011. The item was accompanied by a photograph of Mr Sabra with the caption including the fact that he was " charged with sexual assault on a fourteen-year-old girl ". The author of the article clearly had access to the agreed facts which I read from and the report accorded with those facts. 24. Mr Sabra has pleaded guilty to the three offences and it is important for me to convict him of the three offences which I referred to at the commencement of these remarks. 25. He was arrested on 19 February 2009 and committed for trial on 29 September 2009. He did not plead guilty until over a year later, on 11 October 2010. As Mr Grogan of counsel, the Crown Prosecutor who appeared in the sentence proceedings, said in his written submissions, the matter " was listed for trial on several occasions and on one of which the complainant was required to give evidence ." Mr Grogan argues that the utilitarian discount which he acknowledges should be awarded to Mr Sabra for pleading guilty, should be minimal and should be " significantly less than the maximum of 12.5 per cent " which is relevant in these circumstances in the Criminal Case Conferencing Trial Act 2008. Mr Michael Coroneos of counsel who appears for Mr Sabra in the sentence proceedings argues that the discount should be between ten per cent and 12.5 per cent. I propose to discount the sentence which I eventually impose by eight per cent. I have in mind the significant period of time between the committal for trial and the plea of guilty and the fact that the trial was listed for hearing a number of times and in fact commenced on one occasion. After he was arrested Mr Sabra had no time in custody. 26. Both Mr Grogan and Mr Coroneos provided very helpful written submissions which they supplemented by equally helpful oral submissions in court. A number of issues were the subject of their submissions. One issue was the weight which I should give to X's Victim Impact Statement. Mr Coroneos reminded me that it was unsworn and that X was not crossexamined on her statement. On the other hand Mr Grogan pointed out that there was no request for her to be cross-examined after the draft was available for some time to the defence. He also argued that none of the reactions which X described in her Victim Impact Statement could be regarded as unusual. I would accept Mr Grogan's submission. The description by X of the consequences upon her of the crimes committed against her by Mr Sabra are hardly surprising. I add that I do not take the Victim Impact Statement into account against Mr Sabra as under s 23A (2)(g) of the Crimes (Sentencing Procedure) Act 1999. 27. Another issue agitated by counsel was whether the article published in the Sunday Telegraph should result in a mitigation of Mr Sabra's sentence because of the shame and embarrassment he has experienced and it should be regarded as punishment in addition to the punishment which I will impose for his crimes. I do not accept that submission. As Mr Grogan pointed out, the courts in this country are open and available for the public to attend. That includes of course the press. Publicity about offending behaviour is not an unusual accompaniment to sentence proceedings. Mr Coroneos argued that the article could have an impact upon the business but I accept Mr Grogan's submission that that was speculation. 28. Another area of dispute was the contrition exhibited by Mr Sabra. I do accept that he has expressed some contrition for his offending behaviour. The contrition in my opinion complies with s 21A (3)(i) of the Crimes (Sentencing Procedure) Act and I will take it into account in his favour. However, the extent to which I take it into account is limited. It is limited by a number of factors. One is that it was not supported by Mr Sabra himself going into the witness box and giving evidence. The second is that there are references in the reports which I have already referred to, to Mr Sabra not having a full appreciation of the seriousness of the offending behaviour which he participated in. At times he attributes responsibility to the fourteen-year-old schoolgirl upon whom he perpetrated these sexual violations. That was up to relatively recently. 29. A piece of evidence I have not yet referred to was exhibit 4. Exhibit 4 comprises a folder containing qualifications and certificates which show that Mr Sabra has clearly advanced himself in qualifications in the area of his interest. More importantly the folder contains a significant number of references. The references point out that he is highly regarded within his family, amongst friends, in business relations and within the community. He is regarded as a hard worker. He is regarded as respectful and as a person who contributes to his family and to society. A large number of the people providing references have known Mr Sabra for many years. All of them know about the offences that Mr Sabra has been charged with. Most of them regard the behaviour as completely uncharacteristic. It seems that few, if any, of the persons knew about Mr Sabra's criminal record for importing prohibited imports. 30. Clearly Mr Sabra is regarded as a person of good character, with some qualification, up until the present offences. I regard him too as a person who has exhibited the behaviour and characteristics of a person of very good character. The qualification is that he in fact was convicted of two offences. Also the references need to be seen in the context of the authors not knowing about those offences. Nevertheless much of what they attest to is consistent and clearly demonstrates that Mr Sabra is a man who is committed to his family, friends, a business and community. I think Mr Coroneos makes a good point in his written submissions where he says that " the central theme in the majority of the character references is that the offences are totally out of character for the offender and that the offender has positive prospects for rehabilitation and that the offender is unlikely to reoffend ." I accept that submission. I too regard what happened on this night as totally out of character so far as Mr Sabra was concerned. I think his prospects of rehabilitation are good and I think that he is unlikely to relevantly reoffend. 31. I need to make an assessment of the objective seriousness against s 61M(1) of the Crimes Act because it carries a standard non-parole period. Mr Coroneos submitted that the objective criminality is at a low level. I would accept that submission to the extent that I would regard it as being in the lower third of the range of objective seriousness for offences of this kind. I regard it as, however, towards the top end of that lower third, if I can put it that way, because of the age of the victim X. On the other hand the offence was of relatively short duration. Some offences of this kind could last much longer and be more persistent than the offence in this case. That is not to diminish the impact which the offence had on the victim in this case but so far as its relatively objective seriousness is concerned I regard it as being in the category which I have described. 32. The seriousness of the two offences against s 66C(4) of the Crimes Act need to be seen in the context of the form of sexual intercourse which they took. Mr Coroneos correctly argues that there is authority for the proposition that digital penetration and cunnilingus can be regarded as not as serious as penile penetration. Once again, without diminishing the seriousness of what Mr Sabra has done, his crimes do not fall into a category where, for example, he might have inflicted full penile vaginal sexual intercourse upon the victim and ejaculated into her. The time might have been much longer than it took and it needs to be borne in mind that he did desist when he was asked. 33. Returning briefly to the offence under s 61M of the Crimes Act, so far as the age of the victim was concerned it was, as Mr Coroneos argued, towards the top level of the range of offences for that crime. So far as that offence under s 61M is concerned though, I need to take into account that it was aggravated by the use of the alcohol which is an aggravating feature under s 21A(2)(cb) of the Crimes (Sentencing Procedure) Act . I add that that aggravating feature does not apply to counts 2 and 3 because the offence is described in terms of the use of alcohol. 34. I also do not find it as a statutory aggravating feature that there was any breach of trust involved but I accept Mr Grogan's submission that the " character of the relationship " is relevant to assessing why X was prepared to accompany Mr Sabra and why she was entitled to feel safe in his vehicle. She had felt safe on the previous occasion that she had used his service and as Mr Grogan argued it was " in this context that she accepted the offender's offer for her to meet " the entertainer " and to leave her friends at the party to do so ." Once again I emphasise that I do not regard this as constituting a statutory breach of trust under s 21A(2). I accept Mr Grogan's submission about the context. 35. Mr Coroneos argued that it is open to me to impose a sentence which does not involve full-time custody. Section 5 of the Crimes (Sentencing Procedure) Act provides that I " must not sentence an offender to imprisonment " unless I am satisfied " having considered all possible alternatives, that no penalty other than imprisonment is appropriate." Mr Coroneos argued that I could consider an Intensive Correction Order or that if I thought that penalties of two years or less were appropriate then I could suspend those sentences. I do not accept his submission. It is clear to me by the fact that Mr Sabra committed these serious offences in the circumstances that I have described that he must go to full-time gaol for these crimes. There are in my opinion no alternatives which are appropriate. Mr Grogan indeed argued that to sentence Mr Sabra otherwise than to a full-time custodial sentence would involve appellable error. 36. I have had regard to the statistics published by the Judicial Commission of New South Wales and to a number of decisions which were referred to in papers which were submitted to me and taken apparently from the Public Defenders' website. In particular there were two or three Court of Criminal Appeal decisions concerning offences against s 61M of the Crimes Act. 37. For each of the offences against s 66C(4) of the Crimes Act I regard overall sentences of three years each as appropriate. For the offence against s 61M of the Crimes Act I regard an appropriate sentence as two years and three months. To those sentences I apply the eight per cent discount to which Mr Sabra is entitled because of the plea of guilty which he entered at the time that he did. That reduces the sentences for each of the offences against s 66C to two years and nine months each and the offence under s 61M to two years. 38. I propose to partly accumulate the sentences. I accept that the crimes were all committed on the same occasion and very close in time to each other, but they are each a separate crime. Each of the touching of the breast, the act of cunnilingus and the digital penetration of X constituted a separate violation of her person. Each must be punished. 39. Mr Coroneos argued that there are special circumstances for adjusting the relationship between the non-parole period and the parole period for the sentences. He pointed out that his client had not been in gaol before and that his prospects of rehabilitation were good. On the other hand, Mr Grogan pointed out that there was no significant need for Mr Sabra to be supervised. I propose to make some adjustment in the ratio between the non-parole period and the parole period, based upon the special circumstances which Mr Coroneos referred to. 40. I propose to impose three sentences which will, in total, amount to three years and three months with an effective overall non-parole period of two years. That effective on-parole period of two years is just over sixty per cent of the overall head sentence. Normally, a non-parole period will be seventy-five per cent of the head sentence. 41. The overall sentence will effectively date from today and will conclude on 10 May 2014. The non-parole period overall will date from today and conclude on 10 February 2013. 42. For the offence of aggravated indecent assault against s 61M(1) of the Crimes Act , I set a non-parole period of eighteen months to commence today, 11 February 2011, and to conclude on 10 August 2012. The balance of the term will be six months, to commence on 11 August 2012 and to conclude on 10 February 2013. 43. For the offence against s 66C(4) of the Crimes Act , being the cunnilingus, I set a non-parole period of seventeen months to commence on 11 May 2011 and expire on 10 October 2012. The balance of the term will be sixteen months to commence on 11 October 2012 and expire on 10 February 2014. 44. For the second offence under s 66C(4), of digital penetration, I fix a non-parole period of eighteen months to commence on 11 August 2011 and expire on 10 February 2013. The balance of the term will be fifteen months to commence on 11 February 2013 and expire on 10 May 2014. 45. The overall sentence is three years and three months commencing today, 11 February 2011, and expiring on 10 May 2014. The overall non-parole period is two years commencing today, 11 February 2011, and expiring on 10 February 2013. The first date upon which it appears you will be eligible for release is 10 February 2013. HIS HONOUR: Any factual matters, is the first question that I need to attend to. Anything I need to deal with under s 43, any correction of factual matters? No. What about the sentences themselves, the calculations, please, the dates? CORONEOS: It would appear your Honour's calculations are entirely correct. HIS HONOUR: They're correct, thank you. Ms Burgoyne? BURGOYNE: They appear to be correct. HIS HONOUR: Okay, thank you. I don't set parole, because Mr Sabra's sentence is over three years. In a moment I'll explain it to him. I don't think I'm going to recommend any parole conditions. There's nothing obvious, no. What I sometimes do, Mr Coroneos, and it's up to you, is that those who will classify Mr Sabra in Corrective Services this afternoon indicate that they benefit from any psychological or psychiatric material. There are three reports from Mr Taylor, Dr Nielssen and Dr Martin; the primary reports, I'm thinking of. I can arrange for my associate to fax copies of those to the section in Corrective Services which is responsible for that. She'll probably do that on Monday. CORONEOS: I certainly would ask your Honour to do that and I would thank your Honour for doing that. HIS HONOUR: Are you happy with me doing that? CORONEOS: I am, your Honour. HIS HONOUR: The alternative is they can accompany him with the warrant into custody now, but the disadvantage of that is I have marked them, and my associate will need to erase the markings. CORONEOS: It may be more appropriate for your Honour's associate to-- HIS HONOUR: And also the warrant done by the Sydney registry, and he's here. So we'll probably send them by fax on Monday. Is there anything else? No? Okay. 46. Mr Sabra, you've heard the sentence which I've given. The overall sentence is three years and three months. It starts today. The sentence will finish on 10 May 2014. The non-parole period - that you have to stay in gaol, you're not released - is two years from today. It starts today, and you are eligible for release on 10 February 2013. Whether you're released or not is up to the Parole Authority, not to me. Do you understand that? Okay. 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: 26 October 2011