[1936] HCA 40
Mulato v R [2006] NSWCCA 282
R v Isaacs (1997) 41 NSWLR 374
Zreika v R [2012] NSWCCA 44
Source
Original judgment source is linked above.
Catchwords
[1936] HCA 40
Mulato v R [2006] NSWCCA 282
R v Isaacs (1997) 41 NSWLR 374
Zreika v R [2012] NSWCCA 44
Judgment (7 paragraphs)
[1]
Solicitors:
Sydney Criminal Law Specialists (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2018/231419
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 29 October 2019
Before: Frearson SC ADCJ
File Number(s): 2018/231419
[2]
Judgment
HOEBEN CJ at CL: I agree with the judgment of Adamson J and the order which she proposes.
DAVIES J: I agree with Adamson J for the reasons she gives.
ADAMSON J: Mohammad Aliabadi (the applicant) applies for leave to appeal against the sentence imposed on him by Frearson SC ADCJ on 29 October 2019 following his conviction after trial by jury of two counts of indecent assault (counts 1 and 2) and one count of sexual intercourse without consent (count 3). His Honour imposed an aggregate sentence of 4 years and 3 months' imprisonment commencing on 21 July 2019 and expiring on 20 October 2023 with a non-parole period of 2 years and 10 months' imprisonment commencing on 21 July 2019 and expiring on 20 May 2022.
The applicant seeks leave to appeal on the following grounds:
1. His Honour failed to correctly assess the objective gravity regarding count 3;
2. His Honour failed to correctly assess the objective gravity regarding counts 1 and 2;
3. His Honour failed to give reasons for the assessment of objective gravity for count 3.
Before setting out the factual findings, the sentencing judge (who was also the trial judge) said:
"I am required to find facts which are consistent with the verdict of the jury and the jury clearly accepted the complainant's evidence at trial as truthful and essentially accurate. That was not surprising in light of the powerful support in exhibit J, which was a recorded call of 26 May 2018.
The Crown in written submissions deals with the facts in detail and I consider that representation of the fact[s] to be accurate."
His Honour then proceeded to find the facts. The inference is available that his Honour did so by reference to the transcript of the complainant's evidence in chief at the trial, as the wording used in the findings largely accorded with the complainant's own words.
His Honour found that the applicant and the complainant met through a dating web-site, "Plenty of Fish". They exchanged several messages before meeting for a "date" on 3 December 2017. The applicant went to the complainant's house, which she shared with a housemate, Jason. They went out during the day and visited local sites and the complainant's horse, which was pastured in the area. Later they returned to the complainant's house where she changed into more comfortable clothing and sat on the couch.
The applicant does not challenge the correctness of his Honour's findings with respect to count 1, which were as follows:
"What happened was that eventually he gave her a kiss on the cheek. She moved her face back and he put a hand on her thigh. She moved his hand back. So there was some type of advance at that point, which she was rejecting. He then reached across and touched the outside of her dress and he touched her in the breast area, her left breast. She pushed his hand away again and he said, 'Okay' but then a few seconds later he did it again. This time it was under the dress via a slit in the dress and to use Mr Keller's expression it was 'skin on skin'. He touched her breast under her clothing. He was telling her to 'shush'. She said, 'I don't want you to do that'. She tried to remove his hand. He squeezed her breast and it went for about a minute and she didn't complain at that point; she didn't want to cause a fuss she said. Finally she got his hand out and she said, 'I don't like that' and he sat forward and he said, 'Oh I'm sorry'. She thinks she made reference to how he would feel if somebody he knew was subjected to that conduct and he said, 'I know I'm sorry, I know it's wrong'."
The applicant does not challenge the correctness of his Honour's findings with respect to count 2, which were as follows:
"Within a second or so he put her hand between his legs onto his erect penis. At this time his left arm was around her and she was in the corner under some weight. The hand on the penis is in fact count 2, that's the second indecent assault. She said, 'I don't like this' and he sat forward and said her eyes were driving him crazy. Anyway, it continued."
His Honour made the following findings with respect to count 3:
"After a couple of minutes, he put his arm around her again and applied some body weight and this time he moved her underwear to the side and put his hand or at least multiple fingers inside her genitalia. She said, 'Stop', she tried to push his hand away, but she couldn't.
When a door opened he quickly stopped and she tried to diffuse the situation by saying, 'Well let's go out' and they did go out."
Although the applicant did not contend that any of these findings was incorrect, Mr Karim, who appeared on his behalf, contended that the Crown's submissions were erroneous and that his Honour, in referring to the Crown's representation of the facts in its submissions as accurate, must be taken to have been in error in his findings of fact. I reject this submission. His Honour's reasons set out the findings of fact relevant to sentencing. A general statement that the Crown's submissions as to the facts were accurate does not amount to an incorporation by reference of facts which were not expressly incorporated into the remarks on sentence. In assessing the sentence and the reasons given for it, this Court is confined to the remarks on sentence.
His Honour's reasons relating to the assessment of objective seriousness were as follows:
"It is a question of looking at what happened and trying to assess where they fit. I do take into account in each case the actual nature of the activity and the duration and the fact that it occurred in her home where she was entitled to feel safe, even if on a date. The first incident obviously was skin on skin and he actually squeezed her breast for about a minute and she did protest and he told her to be quiet. I consider that's just below the mid-range looking at it entirely objectively.
The second incident, placing the hand on the erect penis was at least on the clothes. It was on top of the clothing but it was after he had already apologised and then he persisted and then did that. It's slightly less serious than the other matter but by not much. It is below mid-range, notwithstanding that she was constrained by his body weight at that point.
Regarding the sexual intercourse count I do accept that he knew she wasn't consenting. It was digital penetration and he had several fingers in her genitalia and he did use his body weight. The penetration was for a minute or two. He desisted when the door opened. He [scil. she] had tried to push his hand away but to no avail. Sometimes it is said that some form of sexual intercourse is less heinous than others but there is no hierarchy by the legislature and the recent authority suggests exactly that, that there's no hierarchy and each case just depends on its own facts. I do find completely objectively the sexual intercourse count is just below mid-range."
His Honour's findings reflected an acceptance of the following submission made by Mr Keller, who appeared for the applicant both at the trial and at the sentence hearing:
"I would make the submission on his behalf, your Honour, that in the circumstances of the offending and the nature of the offending that your Honour would find that the acts of indecency are below mid‑range and that the act of sexual penetration or sexual intercourse is just below mid‑range in objective seriousness."
[3]
Ground 1: alleged error in assessing the objective seriousness of count 3
Mr Karim submitted that the objective seriousness of count 3, which involved digital penetration, was at the lower end of the scale and that his Honour was in error in determining that it was just below the mid-range.
A challenge to an assessment of objective seriousness for the purposes of sentencing is reviewable only by reference to the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. The oft-cited passage from Simpson J's judgment in Mulato v R [2006] NSWCCA 282 at [46] is instructive. Her Honour said:
"The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40 at 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
The restraint which applies to this Court is even greater following a trial by jury: Baines v R [2016] NSWCCA 132 at [15] (Basten JA). The sentencing judge is obliged to find the facts in accordance with the evidence in the trial and consistently with the jury's verdicts: R v Isaacs (1997) 41 NSWLR 374 at 380D.
In these circumstances, the applicant's submission in support of ground 1 must be understood as amounting to a submission that it was not open to the sentencing judge to assess the objective seriousness of count 3 as "just below mid-range" because it involved digital penetration and not penile penetration. If the submission is not understood in that way, the alleged error would not amount to a House v The King error.
I do not regard this submission as being open to the applicant since his counsel at the proceedings on sentence contended that the offence in count 3 fell just below the mid-range of objective seriousness. An appeal is not an opportunity to reformulate a submission that could have been put below or, as here, to depart from a submission that was put below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing). For these reasons, I would refuse leave with respect to ground 1.
[4]
Ground 2: alleged error in assessing the objective seriousness of counts 1 and 2
His Honour's assessment of the objective seriousness of counts 1 and 2 accorded with the submissions made by the applicant's trial counsel. In these circumstances, leave to appeal ought be refused for the same reasons as with respect to ground 1.
[5]
Ground 3: alleged inadequacy of reasons with respect to assessment of objective seriousness
His Honour's reasons for the assessment of the objective seriousness of each of the counts are set out above. They follow from the findings of fact made by his Honour. I discern no inadequacy in the reasons. While the reasons were brief and delivered ex tempore, they were sufficient to expose the reasons for the assessment. I am not persuaded that leave ought be granted for this ground.
[6]
Proposed order
For the reasons given above, I propose the following order:
1. Leave to appeal refused.
[7]
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Decision last updated: 02 September 2020