Al Mosawe v R

10The applicant was educated in Iraq where he was a secondary school teacher. He has a degree in literature. He worked in Jordan for five years before coming to Australia as a refugee. 11The applicant was married in Australia and has two children. His wife speaks no English and has no family or support in Australia. The applicant was the sole income earner in the family and was paying off a mortgage on the family home. As a result of the commission of the offence the applicant has lost his job as a taxi driver and, until he was sentenced, was in receipt of Centrelink benefits. 12The applicant was imprisoned and allegedly tortured under Saddam Hussein's regime for political agitation. His imprisonment under the Hussein regime was said to be linked to his position as an academic and a minority Christian. 13The applicant has been diagnosed with post traumatic stress disorder and a range of other psychological disorders for which he is being treated. The sentencing judge noted the opinion of the psychologist that these symptoms may have impacted upon the applicant's judgment at the time he committed this offence. 14Apart from this disorder the applicant suffers from back pain from a disease in his lumbar spine for which he takes medication. He also has hearing loss. 15The applicant was aged 48 at the time he was sentenced.

The remarks of the sentencing judge 16The applicant was originally indicted for an offence contrary to 61L of the Crimes Act, which alleged an actual assault. However, on the third day that had been allocated for the trial he pleaded guilty to the alternative count for which he was sentenced. In the circumstances the sentencing judge allowed a 10% discount for the utilitarian value of the plea. 17The sentencing juge found that the offence falls towards the lower end of the scale constructed for like offences. There was no violence and the incident was not planned. The incident was an attempt at digital penetration, which the offender ceased when he was requested to do so. The sentencing judge found that the applicant's plea "does demonstrate some contrition" and said that having "heard from him, I find that he is remorseful and contrite." 18The sentencing judge emphasised that the question of general deterrence loomed large in the applicant's case. Her Honour said: "Members of the public have the right to feel safe and protected while using taxis, particularly late at night, often the only means of transport available. His offending behaviour constitutes a grave breach of trust owed to the members of the public. Passengers in taxi cabs have a rightful expectation that they will be conveyed home and that they will not be sexually assaulted on the way." 19The sentencing judge made a finding of special circumstances and accordingly varied the statutory ratio between the non-parole period and the overall term. Her Honour also recognised the fact that the applicant has language difficulties and mental health issues will make his time in custody more onerous. Her Honour also recognised that the nature of his offence made it more probable than not that he will spend his time in custody in protection.

The appeal 20In support of the first ground of appeal it was submitted on behalf of the applicant that her Honour failed to recognise that the plea spared the complainant the ordeal of giving evidence, a finding which it was submitted should have been reflected in the finding with respect to remorse and contrition. The sentencing judge said after defining the fact that a 10% discount was appropriate for the utilitarian value of the plea "no doubt the complainant was required to ready herself to give evidence at trial and of course that would have required her to relive her experience." It was submitted that it is apparent from this remark that her Honour did not recognise the fact that, although the victim was required to ready herself for trial, because the applicant ultimately pleaded guilty she was spared the need to give evidence. 21I am not persuaded that the error has occurred. Having made the observation to which I have referred her Honour went on to say that she accepted that the plea demonstrated some contrition and, having heard from the applicant, she found him to be remorseful and contrite. To my mind that finding was open. The qualification that her Honour placed on the finding apparent from her remarks that the plea demonstrated "some contrition", appropriately reflected the fact that the plea came at a late stage and did not relieve the victim from reliving her experience in anticipation that she would have to give evidence. 22The maximum penalty for the offence to which the applicant pleaded guilty is 14 years imprisonment. Although the applicant ultimately desisted from his attempt to penetrate the victim, he did not cease his activities when he was first asked to do so. Having kissed the victim and placed his tongue in her mouth, acts which were greeted with significant protest from the victim, he continued to impose upon her by touching her vagina. He not only did this on one occasion but when the victim had made plain her opposition to his actions he not only touched her vagina but made an attempt to penetrate her vagina. 23Although her Honour found that the offence fell towards the lower end of the scale it nevertheless was a deliberate attempt by the applicant, which was persisted in, to have sexual intercourse knowing that the complainant was not consenting. 24The applicant provided the court with reference to a number of cases where offenders were sentenced for similar offences. However, as may be expected the circumstances of each case differed, on occasions significantly. None of the cases to which we were referred involved a taxi driver who sought to take advantage of one of his passengers. 25In R v Gretch NSWCCA, (11 December 1998, unreported) the offender pleaded guilty to one count of sexual intercourse without consent. The offender and the victim were previously in a domestic relationship and the offence occurred some time after the relationship had ended. During the course of an evening when the offender visited the victim's home he forced her on her back, removed her clothing and attempted penile penetration but was unable to obtain an erection. The offender was sentenced by this Court following a Crown appeal to 2 years imprisonment comprising a minimum term of 1 year and an additional term of 1 year. Being a Crown appeal, that sentence must have been at the lowest end of the available range. 26In another case Raczkowski v R [2008] NSWCCA 152 the applicant returned to the home of his estranged wife and tied her up, saying he intended to engage in intercourse. He also threatened the victim with a pistol, which he pointed at her head. He subsequently untied his wife and removed her clothes but tied her to the bed post. In that position he attempted sexual intercourse but the victim prevented him from achieving penetration by kicking him with her unsecured leg. Following a struggle the applicant straddled the victim and ejaculated over her face. The offender was sentenced to a fixed term of 2 years. 27In the present case the applicant sought to take advantage of the fact that the 19 year old victim had entrusted her safety to the applicant anticipating that she would be driven safely to her home. In circumstances where she had no capacity to avoid the applicant's advances he, knowing that she did not consent, made repeated efforts to assault her and attempted to penetrate her vagina. By his actions the applicant committed a gross breach of the trust placed in him, instilling both alarm and fear in the victim. Although, as her Honour found, the offence fell at the lower end of the range, being an attack by a taxi driver on a passenger it required a sentence of imprisonment that both punished the applicant and marked out his offence for other taxi drivers who may be similarly inclined. 28Any one who travels in a taxi is entitled to expect that the journey will be completed without an unwanted sexual advance from the driver. The sentencing judge was conscious of the need to ensure that the applicant was appropriately punished and received a sentence that may operate to deter others from offending in a similar manner. Her Honour rightly determined that the applicant's behaviour constituted a grave breach of the trust owed by a taxi driver to members of the public. 29I do not overlook the fact that the applicant has been diagnosed with a mental condition that may have impacted on his judgment at the time he committed the offence. Her Honour expressly had regard to this issue. However, the offence was sufficiently serious to require a custodial term and I am not persuaded that the sentence that her Honour imposed was manifestly excessive. 30Although I would grant leave to appeal the appeal should be dismissed. 31ROTHMAN J: I agree with McClellan CJ at CL. 32ADAMSON J: I agree with McClellan CJ at CL.

Amendments 01 February 2013 - corrected medium neutral citation Amended paragraphs: coversheet 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: 01 February 2013