Ahmu v R; Director of Public Prosecutions v Ahmu

Facts 61For present purposes, these are not in issue and the following account is largely taken from the sentencing judge's remarks on sentence. His Honour summarised the position as follows - The allegations made by the complainant from counts 2 through to 20 occurred literally throughout the night and over a relatively long period. Count 2 relates to an allegation of sexual intercourse by cunnilingus. Count 3 was an indecent assault which was that the offender licked the anus of the complainant. Counts 4 and 5 each related to penile/vaginal intercourse. Count 6 was fellatio... count 8 related to penile/anal intercourse. Count 9 was penile/vaginal intercourse. Count 10 was again intercourse by way of cunnilingus. Count11 was another instance of an indecent assault ... involving the licking of the anus. Counts 12 and 13 both related to penile/vaginal intercourse. Those counts 2 through to 13 are what have been categorised as the counts that constituted the first episode. The second episode in time relates to counts 14, 15 and 16. Count 14 was penile/vaginal intercourse. Count 15 was intercourse by way of cunnilingus and count 16 was intercourse by way of fellatio ... The third episode relates to counts 17 and 18, count 17 being intercourse by way of digital/vaginal penetration and count 18 being penile/vaginal intercourse. The fourth episode related to the one incident, although it originally had two counts, namely counts 19 and 20, on the basis that count 20 was an alternative ... to count 19 if the jury were not satisfied of the aggravating factor of deprivation of liberty, which they were not. ... This incident occurred ... over a long period of time and there were many observations made by the offender in things said by the complainant [indicating that she did not consent]. There were physical acts such as her crying and resisting and complaining that she was being hurt, for instance, the physical grabbing of her hair to encourage her to suck his penis, and before count 8, the allegation in relation to penile/anal intercourse, the offender said, "I am going to put it up your arse" and she responded, "Please, no, it's really going to hurt", and she started crying. So far as the respondent's knowledge is concerned, the judge was satisfied beyond reasonable doubt that the respondent knew that the complainant was not consenting, although his Honour also accepted that "he perhaps was not in the best state of mind and there may have been some issue of recklessness at least at the start ... It is clear to me that her actions and what she said, together with his observations, establish that he clearly knew, fairly early on, that she was in fact not consenting". 62The judge noted that, at the time of the offences, the complainant was eight weeks pregnant, which added to the objective seriousness of the offences, committed in the context of an ongoing, relatively violent domestic relationship. There was a threat to kill with the offender proceeding notwithstanding the complainant pleaded with him to stop and that, at times, he did so in the presence of his two and a half years old son. A number of the sexual acts were accompanied by humiliating and degrading conduct including the offender watching the complainant urinate, pretending he was having sex with her sister and calling her by her sister's name and forcing the complainant to make derogatory comments about her own mother, such as, "Say you're a slut like your mum". 63The complainant's evidence (which the sentencing judge accepted as truthful and reliable) was that she and the respondent, together with their son, were staying in a cabin with two bedrooms in a caravan park at Bateau Bay. During the early evening of 19 August 2010 the offender left and returned sometime later with a cask of wine. In the meantime, the complainant had gone to sleep in the main room with their son. After a while, he woke the complainant, grabbed her by her arm and pulled her out of bed saying, "We're going to have sex". The complainant told him to leave her alone. The offender tried to pull her out of the room and she planted her feet on to the ground to resist him and burst into tears. The description of the offences is sufficient for present purposes and it is unnecessary to relate the precise details of what happened. The sexual assaults continued into the morning until, eventually, the offender left the cabin. The complainant contacted police to attend at a short time later and she and her son were transferred to Gosford Hospital. 64The offender was located by police at Wyong Hospital at about 1 pm after he left the complainant. He had been seen by a Dr Anand, who found no evidence of any thought disorder and concluded that the respondent was not showing any signs of mental illness and he was released into the custody of police. 65In summarising the objective seriousness of the offences the sentencing judge noted that the respondent had threated to kill the complainant, that a child was present whilst counts 17, 18 and 20 were being committed and, at the time, the offender was the subject of an apprehended violence order directed to protecting the complainant. On the other hand, the sentencing judge accepted that this was not planned conduct but rather a "spontaneous reaction to a given set of circumstances which seem to have then grown a life of their own". His Honour accepted that there might have been a level of intoxication which might provide some explanation, but no excuse, for the offender's conduct. His Honour noted that there was no evidence of actual physical injury and that the threat to kill "may simply have been rhetorical". His Honour also accepted that "the complainant may have elected to adopt a line of least resistance, given their history together... and that, despite her lack of consent, his physical superiority meant that she would be unlikely to stop him and, ultimately, a line of least resistance was in her best interests in terms of minimising any physical harm". As is unsurprising in cases of this kind, however, the complainant continues to suffer significantly from the terrible experience to which she was subjected by the respondent.

Subjective features 66The offender was 27 years of age at the time of the offences. He had no prior criminal convictions and was a person of good character. Mr Borenstein noted he had received extensive psychiatric treatment, including both inpatient and outpatient care since 2007, having been diagnosed as suffering from Schizoaffective Disorder, Major Depression, Psychosis and Obsessive Compulsive Disorder. He had his first contact with a psychiatrist at the end of 2006, feeling suicidal, and was admitted to Waratah House for a month and then moved to a mental health unit for young adults where, as it happened, he met the complainant. Mr Borenstein noted that the offender had received therapy in one form or another since 2007 and a variety of medications, "on and off since 2008". He told Mr Borenstein that he came off his medicines in April/May 2011 upon release from gaol on bail. In his limited evidence in the sentence proceedings the respondent said he ceased to take his medication because it made him feel dull and doing so made him feel better. He started a bridging course in 2011 at TAFE and said he was accepted into Hawkesbury University to study natural science. 67I do not intend to set out the history the offender gave concerning either his relationship with the complainant or as to the offences, since he denied his guilt, asserting that the accusations made by the complainant were designed to prevent him from being involved in her life and the care of their son. He told Mr Borenstein that, however, at the time he was having paranoid thoughts which made him anxious and depressed. 68The offender had attempted to commit suicide by taking an overdose of Risperidone in 2008 and was taken to hospital by his parents. Mr Borenstein said that, on examination, he presented as cooperative, quietly spoken and polite with somewhat flat and restricted affect. There was no evidence of depressed mood or psychotic symptomatology. He denied thoughts of suicide or self-harm and his thoughts, both as to content and process, were normal. There was no evidence of perceptual disturbance and he presented as cognitively intact. 69Hospital notes alluded to the offender being the victim of sexual assault as a child and as having a long history of depression and anxiety with poor self-esteem, poor impulse control, self-harm, aggressive behaviour towards others and feeling this way since the age of eight or 10. Mr Borenstein relates his history of presentation to Campbelltown Emergency Department in March 2009, where he was admitted as a voluntary patient at the sub-acute unit and given medication, being discharged in mid-April 2009 with gradual improvement in mood. He was admitted again for three weeks on 16 April 2010 with a likely diagnosis of treatment resistant schizoaffective disorder. Dr Borenstein noted, in conclusion, that the offender - "has struggled with a long standing and chronic psychiatric disorder, namely schizoaffective disorder with major depression (recurrent type), anxiety and obsessive compulsive disorder. [He] relates a history of low impulse control, aggression, suicidal ideation and some intent. Mr Ahmu says his mental health was deteriorating in the weeks leading up to the day the offence was alleged to have occurred." 70Mr Borenstein thought the offender displayed "good insight, which leads him to seek treatment early so as to prevent major relapses of the sort that has impacted on [his] life circumstances". He thought he responds favourably to structure and routine of the sort he had in the hospital setting and in the prison environment, that he had been compliant with regards to treatment recommendations, in particular the psychological treatment/strategies provided to him by a psychologist. Mr Borenstein thought his "prospects for rehabilitation are sound, strengthened by good insight into the nature of his illness". He thought that the respondent would require ongoing psychiatric monitoring and, in particular, psychological treatment to which he is responsive over the next two to three years. 71In addition to Mr Borenstein's report a presentence report was tendered, the contents of which were noted by the sentencing judge. It is unnecessary to refer to it for present purposes except to note that he asserted his innocence. 72The offender had been in custody from 20 August 2010 to 6 February 2011, when he was released on bail. Accordingly, the first sentence to be served was backdated to 6 June 2012. The sentencing judge also took into account the fact that, when not in custody, the offender was on strict bail conditions, including reporting conditions, initially 3 times a week, then once a week and he was subject to a curfew for "a fair portion of his time on bail". 73In relation to the offender's mental health, the sentencing judge did not accept that there was a direct causal link between those problems and the criminal conduct but considered that they were likely to make his custody harsher and indicated he would need a longer than normal period on parole. His Honour also said, "They probably provide some explanation for his conduct. Notwithstanding that there is no direct causal link; it is clear that his mental health issues did contribute to the way in which he behaved or reacted on this particular evening". His Honour concluded that the respondent's mental health "to some degree... moderates the need to reflect general deterrence in this particular sentence." 74There are many favourable testimonials from family, friends and church contacts, as well as TAFE teachers and vocational friends. He has the support of his family.

Discussion 75As I have mentioned, the Crown appeal depends upon the submission that the sentence was manifestly inadequate. No particular error is identified. Broadly speaking, it is submitted that, having regard to the maximum penalty of 14 years and the standard non-parole period of 7 years, the relevant objective and subjective considerations demonstrate that the sentences for each s 61I offence is manifestly inadequate. So far as the s 61L offences are concerned (counts 3 and 11), each is also submitted to be manifestly inadequate having regard to the maximum penalty of 5 years applicable to these offences in the light of the other relevant objective and subjective considerations. It is submitted also that, when the multiplicity and distinct character of the various offences and their successive commission over a lengthy period of time is taken into account, the accumulation which resulted in the total effective sentence of 7 years with a non-parole period of 4 years did not reflect the totality of criminality involved. 76A number of decisions both of this Court and in the High Court of Australia have dealt with the particular approach which is appropriate to Crown appeals against sentence: see, for example R v Lee [2014] NSWCCA 78; R v Mereb; R v Younan [2014] NSWCCA 149; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. As McCallum J (with whom Bell JA and Johnson J agreed) said, in R v Ferrer [2008] NSWCCA 104, citing R v Baker [2000] NSWCCA 85 per Spigelman CJ at [19] - "... successful Crown appeals should be rare and ... this is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 77Mr Pararajasingham, counsel for the offender, has set out in his written submissions a table of appeals against sentences imposed for similar offences decided in this Court. They demonstrate a range of sentences which does not, to my mind, usefully inform the present appeal except in the most general terms. In particular, it appears none of the cases involved the extensive, repetitious and humiliating sexual abuse to which the complainant here was subjected by the offender, made particularly painful for her because of the presence at times of her two year old child.

Conclusion 78The sentencing judge noted, apparently as a mitigating feature, that the complainant was not injured. However, that she was not physically injured is of little moment. The offender was not charged with aggravated sexual intercourse under s 61J, which involves the infliction of actual bodily harm. The standard non-parole period for an offence under s 61I is seven years imprisonment. Adapting the language of the Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 at [32], that circumstance says a great deal about the appropriate sentence for the offences in this case. The gross, repeated attacks on the personal integrity of the complainant over an extended period by the offender, who well understood what he was doing even given his (limited) mental issues and the possible effects of drinking, combined with deliberate additional humiliation and a callous indifference even to the distressing (for the complainant) presence of their young son at times, reached a level of objective seriousness that must fall into the middle of the range (accepting this to be incommensurable) and bring the standard non-parole period into sharp focus as a yardstick. 79With respect, making every allowance for the wide discretion available to his Honour and giving full effect to the offender's favourable subjective features, it seems to me that the overall sentence demonstrates that the sentencing judge either misapprehended the significance of the standard non-parole period or underestimated the objective seriousness of the offences. Put otherwise, the manifest inadequacy of, at least, the overall sentence as reflecting the totality of the offender's criminality demonstrates that some error of principle must have occurred within the meaning of House v The King (1936) 65 CLR 499. In my view, the appropriate sentence could be no less than 9 years and 6 months with a non-parole period of 6 years and 6 months, allowing additional time on parole because of the need for extended supervision arising from the offender's mental problems. Although the ratio of this proposed parole period to overall sentence is less (slightly over 30 per cent as compared to just over 40 per cent), the parole period remains the three year term determined by the sentencing judge to be appropriate. 80It is, therefore, necessary to consider the residual discretion of the Court to decline to interfere with the sentence despite this conclusion. In Green v The Queen (where the offences concerned the cultivation of a substantial crop of cannabis plants), the principal question concerned the significance of different sentences that had been imposed on co-offenders of the appellants and whether parity principles required adjustment of their sentences. (I have included the discussion as to parity, although that is, of course, not an issue in the present appeal, because it informs, in my respectful opinion, the significance of the character of a Crown appeal, as distinct from an offender's appeal, against sentence.) French CJ, Crennan and Kiefel JJ said (omitting most references) - [35] In a Crown appeal against sentence in New South Wales, the Court of Criminal Appeal is invariably asked to exercise its powers under s 5D of the Criminal Appeal Act to impose upon a convicted person a heavier sentence than that imposed by the primary judge. Assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are: 1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline, in the exercise of its "residual discretion" under s 5D, to allow the appeal and thereby interfere with the sentence appealed from. 2. To what extent, if the appeal is allowed, the sentence appealed from should be varied. [36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion. [37] The parity principle has been the focus of debate in these appeals. Its undisputed significance does not mean that the Court must dismiss a Crown appeal in every case in which allowing the appeal would give rise to disparity. Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D be served by allowing the appeal? If the result of doing so would be a sentence "adequate" on its face, but infected by an anomalous disparity which is an artifact of the Crown's selective invocation of the Court's jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at 18 [70] - "[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong." ... [43] Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual." 81The written submissions filed on behalf of the offender said that it was intended to read affidavits to demonstrate that the rehabilitation of the respondent "is well underway which would warrant this Court to exercise its discretion in this way [by not intervening]". In the result, however, no such affidavits were read. One difficulty facing the offender in this regard is that, as I have mentioned, his position up to being sentenced (and apparently unchanged) was that he was innocent of the charges for which he was convicted. Since the criminal conduct to which the offender's rehabilitation must be principally directed concerns the risk he poses of repeating offences of this kind on his release, the lack of acceptance of the nature of his wrong doing, as a precursor to genuine remorse, is troubling. It is nevertheless relevant to take into account the fact that the respondent has now served almost 2 years and 6 months of his sentence and will be eligible for parole, according to the present sentence, in approximately 18 months. 82It seems to me, as well, that it is important as a matter of principle, to emphasise the significance of the standard non-parole period as a marker or indicator in a case within the middle of the range (broadly defined) of objective seriousness. It has been frequently said in this Court, in substance, that the determination of the objective seriousness of the offence is an evaluative judgment upon which reasonable minds might well differ and it is important that this Court should not substitute its view simply because it differs from that of the sentencing judge. Of course, I entirely accept that this must be so. However, in some cases, such as the present, the assessment of objective seriousness as reflected in the sentences, bearing in mind that they represent an instinctive synthesis of all the relevant factors, including subjective features, so far departs from an appropriate measure (with respect) that it demonstrates error and should be corrected for the purposes not only of the present appeal but other like cases. This leaves alive the question, however, whether a statement to this effect by this Court suffices, without taking the step of increasing the offender's sentence. 83In considering the exercise of the residual discretion, it is appropriate in my view to bear in mind - in terms not usually used but implicit in sentencing for offences such as the present - the need to do justice to the victim, so appallingly dealt with, whose vindication is part of the function of the administration of criminal justice. This applies with particular force in cases of so-called domestic violence, where there seems to often be present in offenders a degree of self-justification as if, in some way, the victim (to use the vernacular) had it coming. I do not say that this was specifically the offender's state of mind in the present case but the facts strongly suggest that he thought he had some kind of right to do what he did. This aspect of domestic violence emphasises the importance, to my mind, of general deterrence, as well as the protection of the community, especially women, who are far too often the victims of this attitude. These considerations also underline the importance of denunciation. 84To my mind, the interests of justice in this case require more than mere statement of principle but mandate the resentencing of the offender.

Proposed orders 85Although I am of the view that the individual sentences for the s 61l offences, particularly those in the first episode, are inadequate when considered individually, it seems to me that the simpler and not inappropriate course is to vary the extent of accumulation to reflect the totality of criminality. I therefore propose that the non-parole periods and head sentences remain unchanged but that the commencement dates be varied as follows -

1. The commencement date of the sentence on Count 20 is unchanged.
2. The sentence on Count 17 is to commence on 6 December 2012.
3. The sentence on Count 18 is to commence on 6 June 2013.
4. The sentences on Counts 15 and 16 are to commence on 6 December 2013.
5. The sentence on Count 14 is to commence on 6 June 2014.
6. The sentences on Counts 3 and 11 are to commence on 6 June 2014.
7. The sentences on Counts 2, 6 and 10 are to commence on 6 December 2014.
8. The sentence on Counts 4, 5, 9, 12, and 13 are to commence on 6 June 2015.
9. The sentence on Count 8 is to commence on 6 December 2015. The overall effective sentence therefore consists of a non-parole period of 6 years 6 months commencing on 6 June 2012 and a head sentence of 9 years 6 months. The offender will become eligible to be considered for release on parole on 5 December 2018. 86FULLERTON J: I have read the judgments of Basten JA and Adams J and agree with their Honours that the appeal against conviction be dismissed. I also agree with Adams J that the Crown appeal against the aggregate sentence should succeed as I do with the orders his Honour proposes on re-sentence. 87Since the admissibility of the affidavit of Mr Taylor, an issue upon which their Honours had differing views, was not ultimately essential to the disposition of the appeal against conviction, their Honours being in agreement that there was nothing in the conduct of counsel that gave rise to a miscarriage of justice (a conclusion with which I agree), it is unnecessary that I express any concluded view on the question.

Amendments 07 January 2015 - corrected decision date 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: 08 January 2015