Ali v R

[2010] NSWCCA 35

Court of Criminal Appeal (NSW)|2009-12-18|Before: Hulme J, Johnson J, Loveday JJ, Clellan CJ

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2009-12-18

Before

Hulme J, Johnson J, Loveday JJ, Clellan CJ

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

The Applicant's Subjective Circumstances 16 The Applicant was born in Bangladesh in 1985. He grew up in a poor farming family. He completed high school and started a mechanical engineering degree in Bangladesh, but that was left incomplete when he came to Australia on a student visa in 2005. 17 In 2006, the Applicant completed an accounting diploma in Australia and commenced studying for a bachelor of accounting. However, he did not complete that degree as a result of his arrest and imprisonment since 4 November 2007. Whilst studying, he supported himself with a number of jobs, including employment as a taxi driver. 18 The Applicant has no prior criminal history apart from traffic matters in 2006. 19 A pre-sentence report dated 10 November 2008 from the Probation and Parole Service was tendered at the sentencing hearing, together with a report dated 8 October 2008 from Mr Gregory Fathers, psychologist. The pre-sentence report noted that the Applicant had arrived in Australia in April 2005 on a student visa, which required him to complete tertiary studies for the visa to remain active and that, as he was in custody, the visa may be revoked. 20 The Applicant had remained in continuous custody since his arrest on 4 November 2007. According to the pre-sentence report, the Applicant completed several educational courses in custody including stress management, information technology, health survival and accounting. 21 The Applicant informed the psychologist that he had never had a girlfriend or partner, although it was noted that he had friends and had established a social network amongst his student acquaintances and members of the Bangladeshi community. The Applicant was not said to suffer from any psychiatric or psychological condition or disorder.

[2]

[11]

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.

[12]

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].

[17]

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.

[22]

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.