Ali v R

(1) the sentencing Judge erred in assessing the objective seriousness of the s.61I offence as above the mid-range;

(2) the sentencing Judge erred in concluding that, because the Applicant had shown no remorse, he was unable to find that there were good prospects of rehabilitation or that the Applicant was unlikely to reoffend;

(3) the sentencing Judge erred in imposing a non-parole period in excess of the standard non-parole period for the s.61I offence;

(4) the sentencing Judge erred in imposing an overall sentence and non-parole period which were each manifestly excessive. 23 The Applicant's challenge focussed upon the sentence for the s.61I offence. The sentences for the s.61L offences were entirely concurrent with each other and the sentence for the s.61I offence, and had expired by the time that the application for leave to appeal came before this Court.

Grounds 1 and 3 - Alleged Errors in Assessment of Objective Seriousness of s.61I offence 24 It is convenient to consider Grounds 1 and 3 together. The Applicant submits that the sentencing Judge fell into error in finding that the offence of sexual intercourse without consent lay above the middle of the range of objective seriousness, and thereafter, in fixing a non-parole period of eight years for that offence. 25 Before turning to the remarks on sentence, I note that his Honour allowed the victim to be identified, with the consent of the victim, for reasons set out in a separate judgment: R v Kowsar Ali [2008] NSWDC 318; 8 DCLR (NSW) 35. 26 His Honour made the following findings concerning the objective seriousness of the s.61I offence: R v Kowsar Ali [2008] NSWDC 319 at [12]-[14], [18]: "12 The offence of sexual intercourse without consent carries a maximum penalty of fourteen years imprisonment. It has a standard non-parole period of seven years. The standard non-parole period is appropriate for an offence in the middle of the range for objective seriousness. Here the objective seriousness was high, involving full penile/vaginal intercourse, including the offender ejaculating. He did not, of course, use a condom. I should interpolate here that I have found beyond reasonable doubt that the offender did ejaculate inside Ms Loiterton's vagina. His counsel made a submission at trial that what occurred was some form of coitus interruptus, with the accused managing to delay ejaculation until he got back in to the front seat of the taxi. Given the finding of semen containing DNA which matched that of the accused in Ms Loiterton's vagina, and the extreme unlikelihood that the offender could have delayed ejaculation until he got back in to the front seat of his cab and driven away, I am satisfied beyond reasonable doubt that the offender, whom I repeat was not using a condom, ejaculated in Ms Loiterton's vagina.

13 The non-sexual violence associated with the offence appears to have been relatively minor, but that was precisely because of the complainant's vulnerability. Had the offender occasioned actual bodily harm to Ms Loiterton he would have been guilty of a different offence, and it is not a mitigating feature of one offence that a more serious offence was not committed.

14 In assessing whether the offence does fall within the mid range of objective seriousness I take into account the form of the sexual intercourse, the fact that there was ejaculation, that Ms Loiterton was extremely vulnerable and that the offence was premeditated. I am able to find that it was premeditated because the evidence establishes that the offender deviated from the route he would otherwise have taken in order to go in to the back street where the offence took place. I am also satisfied, and I am satisfied beyond reasonable doubt, that the offender turned off the security camera in the taxi in order to ensure that there was no photographic record of what he did. The evidence at trial established that a driver could switch off the security camera by means of a switch located under the back seat. When the taxi was stopped, police found that the back seat was not in its proper position. On top of that, there is the obvious circumstance that there was a substantial gap between the last photograph recorded on the security camera, and the next one, shortly before the police arrived.

18 I have found, for the reasons I gave earlier, that the offence of sexual intercourse without consent is above the middle of the range of objective seriousness. Even taking into account the mitigating factors in the offender's favour, I have determined that the non-parole period will be greater than that provided for an offence in the middle of the range, that is the seven year standard non-parole period sentence. I have also determined that the sentences for counts 1 and 2 on the indictment will be served wholly concurrently, they being part and parcel really of what occurred to Ms Loiterton that evening. There are no special circumstances in this case. To take into account matters such as the offender's good character in making a finding of special circumstances would be to double count. It is the offender's first time in custody and that has sometimes been held, indeed often been held, to be a special circumstance, but the non-parole period I will shortly announce is the shortest which I consider is appropriate in the circumstances of this case."

27 Mr Corish, counsel for the Applicant, submitted that the evaluation of the objective seriousness of the s.61I offence was erroneous. He submitted that his Honour had paid insufficient regard to the lack of violence in the commission of the offence, and that a finding ought to have been made that the offence lay no higher than the middle of the range of objective seriousness so that a non-parole period not exceeding the standard non-parole period ought to have been fixed. Mr Corish argued that violence may be used without injury resulting, and that the absence of such violence in this case meant that an erroneous conclusion had been reached concerning the objective seriousness of the offence. 28 The Applicant submitted that the mere fact that the victim was a passenger in the Applicant's taxi did not qualify her as a member of any relevant class of vulnerable victim (s.21A(2)(l) Crimes (Sentencing Procedure) Act 1999). It was submitted that the extent of the victim's vulnerability (due to intoxication), and the advantage taken of it by the Applicant, was not so serious as to warrant it being regarded as a factor which aggravated the offence. Mr Corish submitted that the sentencing judge, in effect, had put to one side the lack of violence whilst emphasising the victim's vulnerability due to intoxication. He submitted that this was equivalent to double counting (in a manner adverse to the Applicant) on this issue. 29 Mr Corish submitted that the Applicant's conduct could more properly be described as opportunistic, rather than premeditated. The route deviation was impromptu and the camera was disabled after the journey had begun. 30 Thus, the Applicant submitted that the objective circumstances of the offence did not take the s.61I offence above the middle of the range of objective seriousness. 31 The Crown submitted that no error had been demonstrated in the finding that the victim was extremely vulnerable. She was significantly intoxicated, had been physically ill, and was "drifting in and out of sleep". It was her level of intoxication which led her friends to place her in a taxi to get home. It rendered her less able to resist the Applicant's actions. 32 The Crown submitted that the approach of the sentencing Judge at [13] of the remarks on sentence (see [26] above) was correct and that, if actual bodily harm had been inflicted upon the victim, a more serious offence would have been committed.

Decision 33 This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47]. 34 The assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue: R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13]; R v PGM [2008] NSWCCA 172 at [26]. 35 I am not persuaded that any error has been demonstrated on the part of the sentencing Judge in the assessment of the objective seriousness of the s.61I offence in this case. It was open to his Honour to characterise the offence as he did. In reaching this conclusion, his Honour referred to the fact that penile/vaginal intercourse was involved, ejaculation occurred inside the victim, no condom was used, the offence was premeditated, the victim was extremely vulnerable (due to intoxication and physical illness) and there was relatively minor non-sexual violence. 36 The sentencing Judge had regard to objective features of the s.61I crime which bore upon its place on a range of objective seriousness. It was open to the sentencing Judge to find that the offence was premeditated by the Applicant, in the sense that he took advantage of the victim in the course of the journey, involving travel to a quiet location and disconnecting the camera to avoid a record being made of his crime. This was not a spontaneous or spur of the moment crime. Having determined to sexually assault the victim, the Applicant took considered action to advance his criminal plan. 37 A significant part of the Applicant's argument related to the absence of non-sexual violence. It is not correct that substantial non-sexual violence is required before a s.61I offence moves above the middle of the range of objective seriousness. The victim was highly vulnerable given her intoxicated state and the Applicant took full advantage of it. He did not need to resort to threats or acts of violence to give effect to his criminal intent. 38 If, of course, the Applicant had intentionally or recklessly inflicted actual bodily harm to the victim at the time of, or immediately before or after, the commission of an offence of sexual intercourse without consent, or had threatened to inflict actual bodily harm by means of an offensive weapon or instrument, he would be liable for the offence of aggravated sexual assault under s.61J Crimes Act 1900, an offence punishable by imprisonment for 20 years and carrying a standard non-parole period of 10 years. The type of injury required to constitute actual bodily harm lies at a low threshold: McIntyre v R [2009] NSWCCA 305 at [44]. It would be wrong, in passing sentence for a s.61I offence, to have regard to the absence of a feature which, if it were present, would constitute a different and more serious offence under s.61J Crimes Act 1900: cf R v Burton [2008] NSWCCA 128 at [90].

39 The victim was vulnerable because of her condition, of which the Applicant was aware. The fact that he did not resort to non-sexual violence (beyond the physical movement of the victim from the front to the back seat of the taxi) does not bear significantly on the objective seriousness of the offence. I reject the Applicant's submission to the contrary. There was no double counting of factors adverse to the Applicant as claimed. 40 No error has been demonstrated in the sentencing Judge's approach to determination of the objective seriousness of the s.61I offence. The features of the crime relied upon by his Honour in the assessment of this offence as lying above the middle of the range of objective seriousness provided a sound foundation for such a conclusion, which was clearly open to the sentencing Judge. 41 As this finding was foundational to the setting of the non-parole period, I do not consider that Ground 3 has merit. 42 I reject Grounds 1 and 3.

Ground 2 - Suggested Error Concerning Prospects of Rehabilitation and Likelihood of Commission of Further Offences 43 The remarks on sentence of the sentencing judge included the following conclusions and findings at [7]-[8]: "7. Character evidence was called by the accused at trial, although he did not give evidence himself. Even today he has not given evidence but has instead relied on a handwritten document which he asked me to read. At his trial one of his character witnesses said that, from his limited understanding of what was alleged to have occurred, it was the offender who was the victim. I have, of course, to be careful not to impose a longer sentence than would otherwise be appropriate because of the way in which the offender conducted his defence. He was of course entitled, without penalty, to plead not guilty and to put forward a palpably false version of events which portrayed the complainant as a woman prepared to have sex with a complete stranger in the back of a taxi. I mention the nature of the defence case because it is relevant for other purposes, including whether the offender has shown remorse, and his prospects of rehabilitation. I will say quite clearly that the offender has shown no remorse whatsoever. He maintains his version of events when speaking to Probation and Parole officers and a psychologist who prepared a report that was tendered before me today.

8 I repeat, he has shown no remorse. I cannot therefore find that he has good prospects of rehabilitation or that he is unlikely to re-offend in the future. Perhaps the only thing that might tend to suggest that he may not re-offend in the future is the substantial sentence I shall shortly impose upon him."

Submissions 44 Mr Corish submits that the sentencing Judge fell into error in concluding that, because the Applicant had shown no remorse, the Court was unable to find that there would good prospects of rehabilitation and that the Applicant was unlikely to reoffend. He submitted that the absence of prior convictions and the Applicant's relative youth were two key factors which would permit a positive finding in relation to prospects of rehabilitation and the likelihood of reoffending, notwithstanding the Applicant's lack of remorse. 45 The Crown submitted that the Applicant's continued denial of the offence meant that there was no material available to assess his motives for offending, or to provide insight into the cause of the offending. Further, the only material available to the sentencing Judge was that the Applicant, when provided with a vulnerable victim and an opportunity to rape, did so and, for this purpose, drove to a quiet area and deactivated the security camera in the taxi. The Crown submitted that error had not been demonstrated in this respect.

Decision 46 This ground of appeal asserts error on the part of the sentencing Judge in failing to make positive findings in favour of the Applicant that he was unlikely to reoffend and had good prospects of rehabilitation for the purposes of s.21A(3)(g) and (h) Crimes (Sentencing Procedure) Act 1999. The onus lay upon the Applicant to demonstrate that mitigating factors of this type ought be taken into account in his favour: The Queen v Olbrich [1999] 199 CLR 270 at 281 [27]-[28]. 47 In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41], the Court of Criminal Appeal observed that remorse will be a major factor in determining whether an offender is unlikely to reoffend and had good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made. Considerations of this type were clearly at the forefront of the sentencing Judge's thinking on this issue. 48 This Court has observed that there can be rehabilitation without confession, and that offenders found guilty after trial are not to be automatically deprived of a finding of good prospects of rehabilitation unless they acknowledge their guilt: Alseedi v R [2009] NSWCCA 185 at [65]. In a different context, it has been said that a medical practitioner who has been deregistered because of proven sexual misconduct is not required to confess before he is reinstated, although continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 100. Similar considerations arise where release on parole is being considered for a sex offender who denies guilt or refuses to undertake a custodial treatment programme: DCU v State Parole Authority of NSW [2006] NSWSC 526 at [46]-[55], [66]-[67]; Lee v State Parole Authority of NSW [2006] NSWSC 1225 at [59]-[64]. 49 Evidence of different types may bear upon an assessment of an offender's prospects of rehabilitation and likelihood of reoffending: R v Elyard [2006] NSWCCA 43 at [18]-[20], [86]-[92]. Evidence of an offender's genuine remorse and insight into the offending conduct may be powerful factors supporting a finding of good prospects of rehabilitation and unlikelihood of re-offending: R v MAK at 169-170 [41]. 50 In my view, the sentencing Judge was entitled to focus upon the absence of remorse and insight in this case in determining whether he could be satisfied that a favourable finding ought be made concerning the Applicant's prospects of rehabilitation and likelihood of reoffending.

51 I am not satisfied that the sentencing Judge excluded from consideration on these issues the Applicant's prior good character and age. However, even if he did, I do not think that these factors dictated a positive finding in the Applicant's favour with respect to these mitigating factors. It must be kept in mind that the Applicant had been convicted of very serious crimes and that his own version, characterised as being implausible by the trial Judge, had been rejected. The Applicant did not give evidence at the trial or at the sentencing hearing and submissions with respect to these issues fell to be considered by reference to the available evidence. Having regard to the gravity of the Applicant's offences, his absence of remorse made it difficult for a positive finding to be made in his favour on these issues. It should be kept in mind that his Honour did not make a finding that the Applicant had poor prospects of rehabilitation and was likely to reoffend. Rather, his Honour's finding was neutral - he was not satisfied that findings favourable to the Applicant ought be made. 52 In my view, no error has been demonstrated as claimed in Ground 2. However, even if a conclusion could be reached that the sentencing Judge had unduly confined factors to be considered on these issues, I do not consider that any materially different conclusion would be reached if express consideration was given to the Applicant's prior good character and youth. There would remain for the Applicant a real difficulty in demonstrating that a lesser sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 53 I would reject Ground 2.

Ground 4 - The Overall Sentence and Non-Parole Period for the s.61I Offence Were Manifestly Excessive

Submissions 54 Mr Corish submitted that the total sentence and non-parole period were manifestly excessive for the offence of sexual intercourse without consent. In support of this submission, he seeks to rely upon sentencing statistics and a schedule of cases where persons were sentenced for s.61I offences both before and after the introduction of the standard non-parole period system in 2003. He submits that an examination of these cases supports the contention that the sentence imposed upon the Applicant lay outside the range of sentence appropriate in the proper exercise of sentencing discretion. 55 In addition, he submits that, even allowing for general deterrence having regard to the Applicant's position as a taxi driver offending against his passenger, the sentence was manifestly excessive. 56 The Crown emphasised that entirely concurrent sentences were imposed for the two indecent assault offences, with the sentencing Judge approaching the three offences as being part of the same course of criminal conduct committed by the Applicant against the victim. The Crown submitted that the Court is not assisted by sentencing statistics or other sentencing decisions in this case: Davis v R [2009] NSWCCA 279 at [16].

Decision 57 To make good this ground of appeal, the Applicant must demonstrate that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25]. There is no single correct sentence, and Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen at 371 [27]. 58 The s.61I offence in this case was a most serious one. As the sentencing Judge found, the victim was vulnerable because of her state of intoxication and ill health, factors of which the Applicant was well aware and took advantage: cf Jalloh v R [2009] NSWCCA 295 at [35]. 59 However, there was an additional feature in this case which attracted a significant element of general deterrence. The sentencing judge adverted to it in his remarks on sentencing at [11]: "It is clear that there must be a substantial component of general deterrence built in to any sentence to be imposed upon the offender. It is a fact of life that every day of the week many members of society drink more than they should, and then need to get home safely. What are they supposed to do? They cannot drive. If they try and get public transport they can be refused access to what little public transport there is these days, and often the only real alternative is to get a taxi. There must be many young people, vulnerable because of their intoxication, in taxis every night of the week, many of whom would be easy prey at the hands of an offender such as Mr Ali. A message must be sent to those who might be tempted to take advantage of that situation for their own sexual gratification, that if they do, they will go to gaol for a long time."

60 The law recognises the vulnerability to crime of taxi drivers because of their occupation: s.21A(2)(l) Crimes (Sentencing Procedure) Act 1999. Before this provision was enacted, this Court had said that "taxi drivers as a group are entitled to have the protection of the courts - they being in a substantially helpless position against thuggery and sexual attack": R v Smith (NSWCCA, 7 July 1988, Lee, McInerney and Loveday JJ, BC8801751, page 4). In R v AS; Ex parte Attorney General (Qld) [2004] QCA 259, it was stressed (at [17]) that the taxi service is a very important adjunct to the publicly run transport system. Williams JA (de Jersey CJ and Mullins J agreeing) observed at [24]: "Taxi drivers provide a necessary service for the public which requires them at night to take complete strangers into their motor vehicles and often drive to remote, secluded locations. Since society expects that of taxi drivers, society also demands that those who take advantage of the vulnerability of taxi drivers should be severely punished." 61 Of course, the present offences were committed by, and not against, a taxi driver. The vulnerable victim was in his taxi because her friends had taken appropriate steps to see her safely home by that means. The factors which serve to make taxi drivers vulnerable to crime were reversed in this case. The victim was in the taxi, in the company of the Applicant, so that he could safely transport her home. The victim was entitled to expect that the Applicant would drive her home safely, rather than take her to a secluded area where he could sexually assault her. The community is entitled to expect that taxi drivers will not prey upon their passengers. The observations of the sentencing Judge (at [59] above) are apt. This case called for a substantial element by way of general deterrence. 62 As the victim's taxi driver, the Applicant was in a position of trust, which he seriously abused in the commission of these offences, whilst his passenger was vulnerable in a state of intoxication and ill health: R v Cutts [2005] QCA 306 at [22], [50], [79]. 63 It was necessary for the sentence to be passed on the Applicant to reflect the sentencing Judge's appropriate finding that the offence lay above the middle of the range of objective seriousness for this class of offence. The standard non-parole period of seven years had direct application given that the Applicant had been convicted after trial: R v Way [2004] 60 NSWLR 168 at 184 [68]. Subjective factors operated in the Applicant's favour but, in the circumstances of the case, it was necessary for condign punishment to be imposed, reflecting significant elements of specific and general deterrence. 64 I have considered the Applicant's argument by reference to other sentencing decisions for s.61I offences and sentencing statistics. More than usual caution should be taken with s.61I sentencing statistics, having regard to the wide range of conduct embraced in the definition of "sexual intercourse": R v Hibberd [2009] NSWCCA 20 at [61]. Further, sentencing decisions and sentencing statistics for offences committed before the introduction of the standard non-parole system are of very limited use: R v Porteous [2005] NSWCCA 115 at [49]. 65 I do not consider that the Applicant's reliance upon other sentencing decisions establishes a range of sentences for s.61I offences which assists an argument that the sentence in this case was manifestly excessive: Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 512 [85]-[89]; Han v R [2009] NSWCCA 300 at [34]. Nor do I consider that the sentencing statistics support such a conclusion. The function of the Courts is to sentence an offender by the application of correct sentencing principles, commencing with the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM [2002] NSWCCA 58 at [116]. Quite apart from these general notes of caution, the facts of this case bear particular distinguishing features which impact upon the objective gravity of the offence and the need for personal and general deterrence to be reflected strongly in the sentence. 66 In my view, the sentence imposed upon the Applicant for the s.61I offence was open to the sentencing Judge. Of course, the sentences for the two s.61M offences were entirely concurrent with each other and the sentence for the s.61I offences. It has not been demonstrated that the non-parole period, or the full term of the s.61I offence was manifestly excessive. 67 I would reject Ground 4.

Conclusion 68 No error has been demonstrated on the part of the sentencing Judge in the imposition of sentences upon the Applicant. Even if error had been demonstrated in accordance with Ground 2, in my view no lesser sentence was warranted in law or should have been passed: s.6(3) Criminal Appeal Act 1912. 69 I would grant leave to appeal, but dismiss the appeal against sentence. **********

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