District Court New South Wales Medium Neutral Citation: R v Aiza Hajj [2019] NSWDC 458 Hearing dates: 1 August 2019 Date of orders: 01 August 2019 Decision date: 01 August 2019 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: At [44] Catchwords: CRIME – sentencing after trial – sexual intercourse without consent Legislation Cited: Crimes Act 1900 s 61I Crimes (Sentencing Procedure) Act 1999 ss 3A; 21A Cases Cited: Tepania v R [2018] NSWCCA 247 Texts Cited: None Category: Sentence Parties: Regina (Crown) Anuar Aiza Hajj (Offender) Representation: Counsel: Mr K Averre (Crown) Mr M Johnston SC (Offender) Solicitors: ODPP (Crown) Laxon Lex Lawyers File Number(s): 2018/00100294 Publication restriction: Non-Publication Order with regards to the name of the victim Judgment 1. It is now 3.16pm. This matter was called on for a sentence hearing at 2pm. It is being dealt with expeditiously today but after due consideration, as the Offender's parents are from Mexico and in the country for only the next few days. The court staff has agreed to sit beyond 4pm if necessary. 2. The offence in respect to which the Offender has been found guilty is sexual intercourse without consent in contravention of s61I of the Crimes Act 1900. It carries a maximum penalty of 14 years imprisonment with a standard non-parole period of seven years. The Offender was born on 20 October 1992 and the offending took place on 30 March 2018. He has been in custody on two occasions, initially in March and April 2018 and then since the jury verdict in June 2019. It is agreed between the parties that any sentence should commence on 6 June 2019. 3. The circumstances relating to the offending were the subject of a trial before a jury, following which, the jury found the Offender guilty of a single charge of sexual intercourse without consent. In order to have found the Offender guilty, the jury was plainly satisfied that sexual intercourse had taken place between the complainant and the Offender. It is undisputed between the two parties that it was penile vaginal intercourse. The jury must also have been satisfied that the complainant, did not consent to the sexual intercourse taking place, and the Offender was aware of that fact, by reason of: 1. the Offender knowing that the complainant did not consent to the sexual activity; or 2. the Offender was reckless as to whether the complainant consented to the sexual activity; or 3. the Offender had no reasonable grounds for believing that the complainant consented to the sexual activity. 1. In order to make factual findings as is required upon sentence, I have reviewed the transcript of the proceedings. I have also been assisted by submissions from Senior Counsel for the Offender, which addresses the most critical factual issue in dispute, that is the question of consent and the circumstances relating to the offending pertaining to that matter. 2. I note that the evidence given by the complainant was relatively concise. At the time of giving evidence, she was 31 years of age. She had been to a night club with a couple of friends on the night of 29 March 2018, before going to the Soda Factory with two friends. Whilst at the Soda Factory, she had a couple of other drinks and she was dancing to music. At that time or shortly thereafter, she met the Offender's brother, Geronimo, who is Mexican. She met him about 15 minutes after arriving at the Soda Factory. They had a conversation about the fact that the complainant had been to Mexico for Christmas and there were other matters discussed between them. It is said, and I accept, that they kissed at some point, whilst at the Soda Factory before catching a taxi back to his premises at Bondi. 3. The evidence of the complainant's is that they left the Soda Factory at about 1.40am but nothing really much turns upon that precise time. They travelled from Wentworth Avenue to Lamrock Avenue, Bondi, where the premises were located. 4. Upon arriving at the premises the brother of the Offender accessed a locker where his keys had been stored so they could gain entry to unit 3 of the premises which is where the offending took place. A sketch plan was tendered in the proceedings and there was nothing particularly contentious about that. 5. The complainant and Geronimo went out onto the balcony. Before that time the complainant had not seen or heard anyone else in the apartment. They were out on the balcony for a couple of minutes before moving into a bedroom directly from the balcony where he started removing her clothes and then they removed his clothes before engaging in consensual sexual activity. They had sex two, maybe three times, following which they talked for a little while. He sent her a text message at about 2.30am or thereabouts so that she would have his contact details in case she wanted to keep in touch. 6. What happened next is that the complainant fell asleep and she woke up upon realising that she was having sex again. She expressed surprise. She thought it was weird because she had been sleeping and all of a sudden she was having sex. Her first thought was that it was the same man, that is Geronimo, but very quickly felt that something was really weird and different from the way it was with Geronimo. 7. She felt that his body was not the same. There was a different in sounds and breathing which made her realise that it was not Geronimo. She also touched his hair and also his shoulders, noticing that the shoulders were hairy unlike those of Geronimo. She then stated, "Who are you? Get out of here" at which time the Offender stated words to the effects of "Maybe it was too much" and he left the room closing the door. 8. The complainant described the sex as the Offender's penis being inside her vagina with him being on top, both of them being on the bed in around the middle of the bed. She gave evidence that it was a dark night. It was dark in the room although there was some evidence to suggest there may have been some street lighting but again nothing much turns upon that matter. 9. In response to a specific question at T18.18 the answer provided reads as follows: So he went to the door and closed the door behind him. Then I stayed on the bed because I was shocked and I was not believing what was happening. So I think I stayed on the bed about 10 seconds then I came to the door and look at what was happening outside of the room and on the left I saw two guys so I recognise Geronimo because he was facing me so I could see his face. He was talking with another guy who was looking in the direction so I couldn't - I could not see his face and they were both just wearing pants and yeah. 1. The complainant gave evidence that at that time she was already 100 per cent sure because of the hair on the shoulder that it was not the same guy that she had had sex with previously. She realised that she had been raped. She dressed, leaving behind her underwear which she could not locate. Before leaving Geronimo came into the bedroom and asked, "What are you doing, why are you leaving?" to which she replied, "Don't even talk to me". 2. She then commenced to leave the premises, returning only to identify the apartment number of the premises where the incident took place. In a conversation that took place between Geronimo and the complainant outside of the premises, he again asked why she was leaving to which she replied, "I know it wasn't you with me the last time". His response was, "What, what are you talking about?" She then stated, "I've just been raped, I'm going to the police station straight away". 3. After identifying the unit number of the premises where the incident occurred the complainant then attended the police station. Before doing so she was again confronted by Geronimo on the street or at least outside the premises where she said to him, "Okay come next to me" and she touched his shoulder "and his shoulders were not hairy like soft so I looked at him and I told him like". The effect of the evidence was that she knew it was not him because that was an additional piece of evidence in her mind that she had been raped. Following that she attended the police station. Before doing so she texted a friend who was in Bali at the time. 4. I note that in evidence was Exhibit B, being a photograph of a phone and which the following exchange occurred between Geronimo and the complainant. Geronimo at 2.29am or thereabouts sent a text message identifying himself by the name 'Gero Aiza'. At around the same time he sent a further text referring to Mexico. At 3.47am he then sent a text which is unclear as to its meaning except that it is plain that he said that he did not understand what the complainant was saying and that he hoped to see her again soon and that he had a great night. 5. She replied at about 3.47am, "I know it wasn't you the last time. Then I opened the door and saw two guys. I perfectly know not was not you." The effect of that text message was that at that time the message was sent, namely 3.48am or thereabouts the complainant was communicating with Geronimo, the brother of the Offender, again confirming her belief or rather stating her belief that it was not Geronimo with whom she had sex on the latter occasion. 6. An exchange then occurred at some time at around 3.48am between the complainant and her friend. I note that at 3.44am or thereabouts the complainant received a text message from her friend stating, "Shit it's awful, please call me when you can". 7. At around 4.09am, the following message was sent by the complainant to her friend: "No battery, I'll make it quick. I've just been raped. I met a guy and slept with him and then I slept with him again and like it was his flat mate I saw straight away that it wasn't the same one". 1. She then later sent a text message to her friend at about 4.09 am or thereabouts indicating that she was with the police. At about 4.10am, the complainant sent a further text message to her friend which read: "Like the guy switched places with another bloke and he didn't tell me". 2. Her evidence then continued to the effect that she was taken to Royal Prince Alfred Hospital where she was examined by a doctor before returning to the police station later that day in order to provide a complete statement. 3. In terms of her state of sleep at the time the offending occurred, in cross examination she was asked at T27.44: "Q. You say that you didn't wake up again until you became aware that this other person was having sex with you, is that correct? A. Yes." 1. The clear inference from the evidence of the complainant is that she was asleep at the time the offending commenced. She was challenged about that fact by reason of evidence which demonstrated that she may have been awake from 2.29am through to 3.11am when an audio recording was made. She stated in response to that line of questioning: "I think I had been sleeping for at least a couple of time and maybe I woke up after". 2. It was then put to her that the Offender arrived back at the premises at 3.21pm, just ten minutes after the audio message was left by Geronimo and the complainant. The effects of her evidence was quite adamant, however, that she remained asleep after having sex with Geronimo prior to being penetrated by the Offender. 3. I have also had regard to the Offender's evidence. It can only be observed that by reason of the guilty verdict, the jury did not accept his evidence which was to the effect that when he opened the door, he and the complainant looked at each other. He asked whether she wanted to have sex and she agreed and sex then ensued. In view of the verdict found by the jury, I reject the evidence of the Offender as to that matter. 4. I make findings as outlined in accordance with the evidence of the Offender to the effect that she was in bed when the Offender arrived at his brother's premises at around 3.21am and that he then was either reckless as to whether she was consenting or asleep, engaged in sexual intercourse without her consent or without having reasonable grounds for believing that she was awake, in which case if she were asleep, she was obviously not in a position to consent to the sexual intercourse. 5. It was submitted by Senior Counsel for the Offender that: "In the circumstances, it is open to find that the Offender was reckless as to whether the victim was asleep or took no reasonable steps to ascertain whether she was asleep as opposed to knowing that she was asleep." 1. In view of the obligation of the Court in fact finding following a jury trial, that is it involves resolving any reasonable doubt in favour of the accused, I accept the submission advanced by Senior Counsel for the Offender and I find that the Offender was reckless as to whether the victim was asleep or took no reasonable steps to ascertain whether she was asleep as opposed to knowing that she was in fact asleep. 2. Submissions were advanced on behalf of the Offender as to the objective seriousness of the offending. It was submitted that it was at the lower end of the scale. As part of that submission, it was acknowledged that although there was an element of predatory behaviour on the part of the Offender, the offence was situational and spontaneous with limited if any planning. The offence was a single act and not a course of conduct and the victim was asleep but not suffering vulnerability by reason of intoxication. 3. I also observe and accept that the evidence of the complainant that the duration of the sexual intercourse was limited to a period of about 15 or 20 seconds before she realised that it was not Geronimo with whom she was having sex. In terms of assessing the seriousness of the offending, I have also had regard to the fact that the Offender wore a condom and, therefore, did not expose the complainant to the risk of pregnancy or infection which would otherwise render the offending more serious. The final matter to which I have had regard in determining the objective gravity of the offending is that the Offender did not ejaculate inside the complainant. 4. The Crown quite fairly to the Offender agreed that the offending was at the lower end of the scale. I accept the submission of Senior Counsel for the Offender together with the concession by counsel for the Crown and find the objective gravity was at the lower end of the scale. 5. Although this a matter to which a standard non-parole period applies, I am not satisfied that it ought to be applied by reason of the finding I have made as to the objective seriousness of the offending. The relevance of the standard non-parole period was most recently discussed in the Court of Criminal Appeal in the matter of Tepania v R [2018] NSWCCA 247 in which Johnson J at [110] summarised the propositions that arose from the legislation in which the provisions relevant to the standard non-parole period are found. 6. The standard non-parole period is a matter to be taken into account by the Court as part of the determination of sentence. The legislation specifies that the standard non-parole period applies to an offence found within the middle range of the objective seriousness of such an offence taking into account only objective factors without bringing to account matters that are unique to the Offender or the class of Offenders. 7. Ultimately the standard non-parole period is but one factor to which the Court is to have regard in determining what is an appropriate sentence. In my view, the standard non-parole period ought not be applied in this case given the unique features of the Offender to which I will refer in a moment, together with the fact of the offending fell at the low end of the scale of objective gravity. 8. It was not submitted on behalf of the Crown that there were any statutory aggravating factors and I do not find any such exist. In relation to mitigating factors I find that the mitigating factor of s21A(3)(e) applies, that is the Offender does not have any record of previous convictions. I further find in accordance with s21A(3)(f) that the Offender was a person of good character. Further, I find after considering the subjective material to which I will refer in a moment, that the Offender is unlikely to re-offend. Pursuant to s21A(3)(h) I find that he has good prospects of rehabilitation by reason of his age and his general good character. 9. As to subjective matters it was submitted by Senior Counsel for the Offender that his client is a twenty six year old Mexican national. He has no prior criminal history in Australia or in Mexico which I have already observed. There are a large number of references from family, friends, clergy and colleagues which all confirm that he is otherwise a person of good character, a finding which I have made. The references also refers to his services to the community, including his efforts in providing assistance to the 2017 earthquake victims in Mexico City. He has successfully completed primary, secondary and tertiary education in Mexico and has spent a year boarding in Canada. He is proficient in English. He studied business finance and obtained employment in a consulting firm. At the time of this offence he was on a holiday visiting his brother in Sydney. Following his arrest he was ultimately granted bail but not permitted to return to Mexico. This caused him to suffer anxiety and depression as a result of the isolation and displacement following his arrest. I note the observations by the Psychologist, Ms Liest in that regard at paragraph 21. 10. Following the conviction the Offender was bail refused and he is currently assessed by the Psychologist as experiencing moderate depression and extremely severe anxiety. I accept those diagnoses. There was also mention of an adjustment disorder but the precise basis for that diagnosis is unclear but in any event I do not consider that it would alter the sentence to be imposed. 11. Ms Liest, the psychiatrist, expressed the opinion at paragraph 34: "That the Offender's mental condition will be exacerbated by spending additional time in custody." She observed that he will be isolated from his support network in Mexico and is likely to experience future hardship relative to other inmates due to his mental condition and social and cultural isolation. I accept those observations and find that serving a period of imprisonment will be more onerous for this Offender than for others. 12. It was conceded by Senior Counsel for the Offender that the s5 threshold has been crossed and a custodial sentence is the only appropriate sentence. Before sentencing an Offender to a term of imprisonment it is necessary for the court to have regard to other sentencing outcomes. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in this case. 13. In sentencing the Offender I am mindful of the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act. That is to ensure adequate punishment. Next, to prevent crime by deterrence, next to protect the community from the Offender, next to promote the rehabilitation of the Offender, next to make the Offender accountable for his actions, next to denounce the conduct of the Offender and finally to recognise the harm done to the victim of the crime and the community. I am satisfied that the sentence to be imposed achieves all of those purposes for sentencing. In doing so however I have not overlooked the significant effect which the offending has had upon the complainant and I have had close regard to the Victim Impact Statement which was today read out in court by Ms Cook, a victim representative. It is plain the complainant has suffered poorly as a consequence of the incident leading to this sentence and that is a matter to which the Court has had regard in determining the appropriate sentence outcome. 14. I also note that the Offender, whilst in prison, has already attained two certificates in relation to courses, one being the Health Survival Program which he completed on 7 July 2019 and the second being a certificate of acknowledgement for demonstrating a positive attitude with a willingness to participate in a polite, respectful manner. Both certificates were issued in July 2019. My observation of the Offender, to the extent that it is relevant to the sentence, is that apart from this offending, which the jury found beyond reasonable doubt was committed, he strikes me as a person who is generally a person of good character with strong family ties and a commitment to bettering the community and himself. 15. I do not intend to read through all of the testimonials that have been provided by various family members and others, except to observe that all of them speak extremely highly of the Offender and expressed shock or surprise at the fact that he has been charged and convicted of the offence for which he is to be sentenced. 16. In my opinion this is a matter in which special circumstances ought to be found so as to justify a departure from the parole to non-parole period favourable to the Offender. In fact I note that so much was conceded by counsel for the Crown. Special circumstances are found on the basis that this is his first time in custody and as a consequence of being in custody he requires treatment and/or rehabilitation and finally that his time in custody will be more onerous by reason of his isolation from his community support and family. 17. Mr Aiza Hajj you are convicted of sexual intercourse without consent in breach of s61I of the Crimes Act. In respect of that conviction I sentence you to a non-parole period of 18 months, commencing 6 June 2019 and expiring on 5 December 2020 which will be the earliest date upon which you can be released on parole. I impose a head sentence of three years, commencing 6 June 2019, expiring 5 June 2022. The effect of this sentence is that you will be released on parole on 5 December 2020. ********** 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: 03 September 2019