Ali v The Queen [2013] VSCA 294

3 After an aborted sentencing hearing on 12 July 2012 when the appellant collapsed, on 21 December 2012, the appellant was sentenced as follows:

Indecent assault [Crimes Act 1958 s 39(1)]

10 years [Crimes Act 1958 s 39(1)]

[Crimes Act 1958 s 38(1)]

25 years [Crimes Act 1958 s 38(1)]

4 The sentencing judge further ordered that the appellant be registered as a sexual offender with reporting obligations for 15 years. As to the third and fourth charges of digital rape, he was sentenced as a serious sexual offender pursuant to s 6C of the Sentencing Act 1991 (Vic).

5 The appellant applied for leave to appeal against his sentence on 4 September 2013. Buchanan JA granted that leave. The grounds of appeal are as follows:

1A. The sentencing discretion miscarried as a result of the Judge's having sentenced the appellant on the basis that, because he was a taxi driver, his offending was thereby more grave. In particular, the judge impermissibly aggravated the appellant's offending by finding that:

(a) In general terms the appellant's employment as a taxi driver placed him in a position where the community expected that he would not exploit the vulnerability of drunken women; and

(b) Despite the fact that the victim was not the appellant's customer, his status of a taxi driver operated to make his offending "a more serious example" of the crimes committed.

2A. The sentencing judge erred by imposing an individual term of imprisonment on charge 4 which is one year and 6 months greater than the sentence imposed for the same offence, committed in like circumstances, on charge 3.

2B. In all the circumstances,

(a) The sentence imposed on charge 4;

(b) The total effective sentence; and

(c) The non parole period are manifestly excessive.

6 On 26 January 2011, the victim, who is referred to as SM, turned 18. She celebrated by having a party with a friend. She drank a lot of alcohol at the party and afterwards, in various nightclubs. By early morning on 27 January 2011, she was seriously affected by alcohol and was separated from her friends.

7 Outside a nightclub, she saw a school friend, MD. He was waiting for a cab with his friend, BP. The three took the taxi together. SM got out, as did MD. SM went into her hotel room but left because her friend and her friend's boyfriend were in bed together there.

8 SM then went to buy cigarettes from the nearby 7Eleven. She recalled walking down the stairs and feeling unwell. She passed out and collapsed on the street a short distance from the hotel and remained there unable to get up. The taxi driver, Mr Nerang, stopped near SM and tried to rouse her but could not and drove off again.

9 At 4.22 am another taxi, driven by the appellant, stopped where SM lay. He tried to rouse SM and then squeezed her breasts. He exposed her breasts and sucked and bit her nipple. In doing this, the appellant left his saliva and DNA on SM.

10 The appellant became aware of a car driving along the street so he went back to his taxi. After the car passed, he returned and proceeded to put his hand under her pants and penetrated her vagina with his finger or fingers. Again a car disturbed him so he returned to his taxi.

11 After the second car had passed, he returned to SM and penetrated her vagina with his finger or fingers, this time causing her great pain.

12 The appellant then got back into his taxi and drove away. The GPS device in his taxi indicated that he had been at that location for 11 minutes.

13 SM remained on the footpath when the appellant drove off.

14 At some point, a group of young men threw things at SM and abused her. Later, the person BP, returned to the area in his car. He noticed SM on the footpath who was in distress and holding her groin and stomach. She said to BP, 'I've been raped'. When he asked who did it, SM replied, 'The taxi driver'.

15 As the grounds of appeal demonstrate, there are two aspects to this appeal. The first is that the sentencing judge erred in concluding that:[1]

... in general terms, your employment as a taxi driver places you in a position where your employer and, importantly, the community expect that you will not exploit the vulnerability of drunken women.

Although SM was not in direct terms a customer of yours, nonetheless your status of a taxi driver does operate to make your offending a more serious example of these crimes.

16 The second aspect of the appeal concerns the claimed disparity between the head sentence imposed on Count 3 (four years' imprisonment) and that on Count 4 (five and a half years' imprisonment) and the effect of that disparity on the total effective sentence and the period fixed before eligibility to apply for release on parole.

17 In this Court, the appellant, by his counsel's written submissions, effectively argued that the occupation of the appellant as a taxi driver was an irrelevant sentencing consideration. SM had not been a passenger in his taxi and was not his customer. It was argued that he was therefore no more culpable than any other member of the community who, driving their motor vehicle, chanced on this vulnerable young girl.

18 Counsel for the respondent conceded that his Honour's observations and conclusion about the appellant's role as a taxi driver were irrelevant and conceded that this was an error. In my view and for the reasons that follow, that was a concession properly made.

19 I note that during the course of the plea the sentencing judge raised the issue of the appellant being a taxi driver with the prosecutor and asked her whether it was a matter which needed to be factored in. The prosecutor submitted that it could be taken into account but appeared to accept that there was no issue of breach of trust arising from the fact that the appellant was driving his taxi at the time he came across SM.

20 With respect, in my opinion, the occupation of the appellant as a taxi driver is an irrelevant sentencing consideration in measuring the appellant's culpability, given that it played no part in the commission of the offence. The use of the appellant's taxi was not the means by which he became aware of the young woman. Her vulnerability was obvious to anyone on the street at the time, as the evidence disclosed. However, it happened that it was the appellant who took advantage of her, having driven there in his taxi. Apart from those emergency professions which create an obligation to assist in such circumstances, the community expectation on other members of the community not to take sexual advantage of a young woman in the position of the victim is, and should be, uniform.

21 It follows that in relation to this ground, I am persuaded that sentencing error has been made out. However, I am not persuaded that a different sentence should now be imposed on the appellant.[2] In dealing with that issue, I will first address the remaining grounds of appeal.

22 In grounds 2A and 2B, the criticism made of the sentences imposed by the sentencing judge is that the sentence on Charge 4 was excessive in relation to the sentence on Charge 3 and that therefore the total effective sentence and nonparole period were manifestly excessive.

23 As I understood the argument in the written submissions, establishing manifest excess depended entirely on impugning the sentence on Charge 4. The sentence on Charge 4 was criticised because it was argued that there was no factual basis on which to impose a sentence on that charge that was 40 per cent greater than the sentence on Charge 3. Counsel for the appellant referred to that submission in the course of the oral submissions in this Court.

24 Save for the error which I have already referred to, it was, in my opinion, open to the sentencing judge to impose an increased sentence on Charge 4 for a number of reasons. Having presided over the appellant's trial, his Honour was obviously conscious of them.

25 In her evidence, the victim described the appellant touching her breasts before returning to his taxi because of the presence of other vehicles in the vicinity. When he returned, he repeated that touching as well as placing a finger in her vagina. He then returned to his taxi for the same reason. Apparently thinking it was safe to return to the victim and exploit her for a third time, he did so and this time, she said, he 'crouched on my lower half where my body was'. He then partly removed her clothing and inserted a number of fingers into her vagina which she said caused her excruciating pain. He was also urging her to be quiet.

26 In my opinion the offending comprising Charge 4 was the most serious. By this stage the appellant had established how vulnerable the victim was and on two occasions had made a conscious choice to continue to take advantage of that vulnerability and had increased the seriousness of his offending until he felt at risk of being discovered. However spontaneous the first incident was, the subsequent incidents increasingly represented a determination to take greater advantage of the victim, subject only to being seen by a passerby who might interfere. In addition, injury in the form of pain was caused to the victim on the last occasion.

27 On the question of whether a different sentence should be imposed on the appellant, it is obvious, as the sentencing judge outlined in some detail, that these were very serious offences which appeared to escalate in their culpability. I respectfully agree with his Honour that the appellant's conduct demonstrates a desire to put sexual gratification ahead of any 'decent response' to SM's condition and his conduct is rightly condemned.

28 During the plea before the sentencing judge, counsel for the appeal outlined in detail a number of circumstances which mitigated the offending. He referred to the appellant's age of 48 years and that he was the holder of Australian citizenship. The appellant has no previous criminal history. He has professional qualifications as a civil engineer in Pakistan but has been unable to work in Australia due to those qualifications not being recognised. He sought to further his tertiary qualifications in Australia. Evidence revealed that he suffers from hypertension and type 2 diabetes. He also suffers from the symptoms of anxiety and depression for which he is being medicated. According to the information before the sentencing judge, the sentence imposed on the appellant would be served in a significantly isolated manner in a practical rather than a punitive sense.

29 During the hearing of submissions on the appeal, we were told by counsel for the appellant that at Ararat Prison the appellant was apparently assaulted and that he reported the matter to the authorities and was cooperating with an investigation. Additionally, five or six months ago, as a result of complaints by other prisoners sharing the appellant's cell, he was moved from Ararat Prison to Port Phillip Prison where he is to be treated for the condition known as sleep apnoea.

30 However, in all the circumstances and given the nature of the offending, I am not persuaded that a different sentence should now be passed. This sentence was imposed on the appellant after a trial and therefore no element of remorse arose for consideration.

31 Despite my conclusion that an irrelevant sentencing consideration was treated by the sentencing judge as an aggravating factor, I would, in all the circumstances, dismiss the appeal.

32 I agree. It is important, I think, to emphasise that error having been established and conceded, the question for this Court under s 281(1) of the Criminal Procedure Act 2009 is whether we are satisfied that a different sentence - that is, in this case, a lesser sentence - should be imposed.

33 In addressing that question, the Court does not seek to infer what contribution the erroneous consideration made to the judge's own sentencing synthesis. Rather, we examine the sentencing judge's findings, and the evidence before him, in order to decide for ourselves whether the appellant has made a case for a lesser sentence.

34 I respectfully agree with Lasry AJA, for the reasons which he has given, that the appellant has not made that case. This was to be viewed - in the range of circumstances that present themselves in rape offending - as a very serious example

of such offending. Its seriousness is underlined, first, by the high degree of vulnerability of the victim, which was obvious to the appellant, and of which he took advantage on successive occasions. Secondly, his persistence and what amounted to premeditation after the first assault - that is, his decision, having gone back to the taxi, to resume the sexual assault once the coast was clear - made each successive assault the more serious.

35 Thirdly, as the evidence of the complainant graphically described, she experienced excruciating pain in the offending, to say nothing of the long-term psychological consequences for her, as so often is the case with victims of sexual crime of this kind. That inevitably made it a task of real difficulty for an appellant to establish that after a trial - that is to say, with no discount for a plea of guilty - we should nevertheless be satisfied that a lower sentence should be imposed. I, too, would dismiss the appeal.

36 I agree with what has been said by Lasry AJA and the additional remarks added by the President.

37 I would, for my own part, add only this. It was suggested by the learned Chief Crown Prosecutor that, on a plea, this might have been a case in which one count of rape might have been alleged. It seems to me this is almost certainly not such a case. That proposition is clear enough from what has been said by Lasry AJA when addressing Ground 2(a).

[1] DPP v Ali (Unreported, County Court of Victoria, Judge Mullaly, 21 December 2012), [10].

[2] Criminal Procedure Act 2009 (Vic), s 281(1).