ALIZADA -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 18 (5 February 2021)

Overview of the facts and circumstances of the offending

1. As at 14 February 2018, the complainant was in hospital being treated for mental health issues, including anxiety, depression, post-traumatic stress disorder and borderline personality disorder.
2. On 14 February 2018, the complainant's friend, S, invited the complainant to spend the day with her in the community. The complainant left the hospital for that purpose with the permission of hospital staff.
3. On the afternoon of 14 February 2018, Mohammed Hussaini (a friend of the appellant and S), collected S and the complainant in his motor vehicle. After driving around Perth for some time, Mr Hussaini telephoned the appellant and asked whether they could come to the appellant's factory unit and socialise. The appellant agreed. He had not previously met S or the complainant.
4. When Mr Hussaini, S and the complainant arrived at the appellant's factory unit, the appellant gave the complainant four cans of premixed Jack Daniels. The appellant, Mr Hussaini, S and the complainant conversed for about an hour or more.
5. The complainant drank the four cans of premixed Jack Daniels quickly because she was thirsty. The complainant vomited.
6. The complainant then sat in the appellant's car because she felt ill. Mr Hussaini and S re-entered the factory unit. The appellant remained with the complainant.
7. The complainant laid down on the back seat of the vehicle. She fell asleep as a result of her intoxication and prescription medication she had taken.
8. The appellant removed the complainant's pants and sexually penetrated her vagina with his penis while she was unconscious. The complainant regained consciousness while the appellant was having sexual intercourse with her. She panicked but did not say anything. Shortly afterwards, she fell asleep again.
9. When the complainant awoke the appellant was not present. She put on her clothes and went inside the appellant's factory unit. The complainant told S that she thought she had been raped.
10. The appellant and Mr Hussaini returned the complainant to the hospital. The police were called and interviewed her. The police interviewed the appellant four months later. The appellant told the police that he had no prior relationship with the complainant. He claimed not to recognise her when shown her photograph. DNA analysis established that the appellant had in fact had sexual intercourse with the complainant.

The trial judge's sentencing remarks and the appellant's personal circumstances

1. The trial judge made findings as to the facts and circumstances of the offending to the effect of the overview we have set out at [12] ‑ [21] above.
2. His Honour noted that at the time of the offending the appellant was aged 45 or 46. He was born in Afghanistan and came to Australia as a refugee.
3. The complainant was aged 18 at the time of the offending. She has a mild intellectual disability. His Honour accepted that this disability may not have been apparent to the appellant when he met her for the first and only time on the date of the offending.
4. The trial judge said that the complainant was a convincing witness with a detailed memory of what had occurred, when she was conscious, on the day of the offending. It was not surprising that the jury had rejected the appellant's evidence to the effect that he and the complainant had consensual sex while the complainant was awake.
5. His Honour was satisfied that, on the day of the offending, the appellant was not affected by alcohol 'to any great degree' (ts 290).
6. The trial judge found that upon the arrival of Mr Hussaini, S and the complainant at the appellant's factory unit, the appellant gave the complainant the four cans of premixed Jack Daniels. The appellant, Mr Hussaini, S and the complainant sat and spoke in a group. Occasionally, one or more of them would go outside for some fresh air and to smoke a cigarette. It was apparent to his Honour that the appellant's understanding of English was quite good and that he could speak English adequately for conversational purposes.
7. His Honour said there was no particular personal interaction between the appellant and the complainant. His Honour added:

[The complainant] did absolutely nothing to lead [the appellant] on, and there was no flirtation between [the appellant and the complainant] or discussion about sexual matters. After [the complainant] had consumed the four cans of alcohol, which ... she did quite quickly ... because she was thirsty, [all four of them were] outside the front of the unit when [the complainant] was sick and vomited as a consequence of having too much to drink (ts 291).

1. The trial judge found that, after the complainant vomited, Mr Hussaini and S returned inside the unit and closed the blinds. The appellant was left alone with the complainant outside the unit. The complainant asked to sit in the appellant's car because she was feeling ill. The complainant lay on the back seat and fell asleep.
2. His Honour described the facts and circumstances of the offending. His Honour said there was no doubt that the complainant did not consent to sexual intercourse with the appellant and, indeed, she was unconscious when the appellant sexually penetrated her.
3. The trial judge said that the appellant's conduct at the trial and his plea of not guilty precluded any finding of remorse or insight.
4. His Honour noted that the appellant's offending was aggravated by the following factors:

I am satisfied not only that [the complainant] was a vulnerable victim, but I'm satisfied that you knew she was a vulnerable victim. On your own evidence, you saw that she had scars on her arms and knew they were from self-harm attempts.

It's a further aggravating factor that there is a substantial age difference between you. She was 18, you were around 45. And indeed, she was younger than your oldest daughters.

It's aggravating that you plied her - you might not have known that she was 18, but you knew that she was very young - that you plied her with alcohol, and did so hoping it might lead her to be disinhibited.

In my view, it is an aggravating factor in this case that you penetrated her, a vulnerable young woman, while she was asleep and unconscious and obviously intoxicated (ts 293).

1. His Honour said that the appellant's offending was also aggravated because the offending was particularly traumatic for the complainant. When the offending began she was vulnerable in that she was asleep. When she awoke, while the appellant was having sexual intercourse with her, the complainant panicked but 'was frozen and could not say anything to [the appellant], and then fell back asleep' (ts 294).
2. The trial judge noted that the complainant was now 'considerably more anxious and traumatised than she was before' the offending (ts 294). The complainant's abiding fear, apparent from her victim impact statement, is her fear of men. She is fearful of going out in public, she does not want anything to do with men and she does not want children. The complainant has attempted suicide. His Honour said he appreciated that the complainant had considerable difficulties before the commission of the offence and that her current condition could not be completely attributed to the appellant. However, his Honour found that the offending had substantially aggravated her trauma. After giving evidence at the trial, the complainant was readmitted to hospital. She is heartbroken that her first sexual experience was a rape.
3. His Honour accepted that the appellant had endured a war in Afghanistan and had led a very difficult life in that country. In 1999, the appellant arrived in Australia and spent six months in immigration detention. Upon release into the Australian community, the appellant had worked very hard to improve his position in life. He has a very good work history. The appellant is now an Australian citizen. In 2006, his family arrived in Australia. He has six children aged between 11 and 24 years.
4. In 2012, the appellant separated from his wife. In 2013, the appellant was convicted of assault occasioning bodily harm in respect of his wife. He was sentenced to a community based order. A spent conviction order was made. The offence was committed in May 2012, at the time the appellant and his wife separated. His Honour observed:

It is in my view a relevant conviction ... because [it is] indicative of [the appellant] having committed a previous offence of violence against a woman, and it indicates to me that you have a serious attitudinal problem in relation to women which you need to address (ts 295).

1. The appellant does not have any other relevant convictions. However, the existence of the 2013 conviction meant that the trial judge could not treat the appellant as a person of prior good character.
2. The appellant does not have any alcohol or drug issues.
3. In 2016, the appellant and his wife were divorced. However, since that time the appellant has reconciled with his wife. The appellant continues to support his family.

1. As we have mentioned, ground 1 asserts that it was not reasonably open to the trial judge to be satisfied beyond reasonable doubt that the offending was premeditated.
2. Counsel for the appellant contended that his Honour had sentenced the appellant on the basis that the offending was premeditated because his Honour had found that the appellant had 'plied [the complainant] with alcohol, and did so hoping it might lead her to be disinhibited' (ts 293). Counsel submitted that the evidence at the trial did not support the finding that the appellant had plied the complainant with alcohol in the hope that she might become disinhibited.
3. It was argued that the appellant's offending was 'opportunistic rather than premeditated' and, accordingly, his offending 'fell to be dealt with lower on the spectrum of seriousness than was otherwise the case'.

1. The trial judge had the considerable advantage of having presided over the appellant's trial. His Honour saw and heard the complainant and the appellant give evidence.
2. His Honour's impugned finding in relation to the appellant having plied the complainant with alcohol in the hope that she might become disinhibited was made in the context of other unchallenged findings by his Honour as follows:

(a) at the time of the offending, the appellant was aged 45 or 46 and the complainant was aged 18;

(b) the appellant knew that the complainant was vulnerable;

(c) in particular, the appellant had seen scars on the complainant's arms and he knew that they were the result of self-harm;

(d) the appellant gave the complainant the four cans of premixed Jack Daniels upon the complainant arriving at the appellant's factory unit with Mr Hussaini and S; and

(e) later, the appellant had sexual intercourse with the complainant, without her consent.

1. In our opinion, the express assertion in ground 1 to the effect that the trial judge was satisfied that the offending was premeditated and the implied assertion in ground 1 to the effect that his Honour sentenced the appellant on that basis are false. We are of that opinion for the following reasons.
2. First, his Honour did not state in his sentencing remarks that he was satisfied that the offending was premeditated (that is, done after being thought about or planned) or that he would sentence the appellant on that basis.
3. Secondly, in making the impugned finding, his Honour was merely indicating that the appellant had given a significant quantity of alcohol to the complainant in the hope that she might become disinhibited and that he might be able to have sex with her.
4. Thirdly, in making the impugned finding, his Honour was not indicating that he was satisfied that the appellant had given the substantial quantity of alcohol to the complainant with the objective of the complainant becoming disinhibited (or falling asleep) so that he could have sex with her, whether or not she consented.
5. Fourthly, the impugned finding was a finding by his Honour as to the appellant's hope in relation to the complainant before the appellant formed any intention to have unlawful sexual intercourse with her.
6. Fifthly, the word 'disinhibited' means, in context, a loss of inhibition or restraint through the influence of alcohol. The word does not convey that the disinhibited person has fallen asleep or become unconscious.
7. Sixthly, the phrase 'plying with alcohol' means, in context, to repeatedly give someone a quantity of alcohol. In the present case, the appellant gave the complainant a large quantity of alcohol upon the complainant arriving at the appellant's factory unit. He did not repeatedly give her alcohol and, to that extent, his Honour's use of the word 'plied' was inapt. However, nothing turns on the inapt use of that word. The substance of what his Honour said was that the appellant had given the complainant a large quantity of alcohol in the hope that she might become disinhibited and that he might be able to have sex with her. That statement was correct.
8. Seventhly, there is a fundamental difference between a person giving a significant quantity of alcohol to another person in the hope that the recipient might become disinhibited and that the giver might be able to have sex with the recipient, on the one hand, and a person giving a substantial quantity of alcohol to another person with the objective that the recipient will become disinhibited (or fall asleep) so that the giver can have sex with the recipient, whether or not the recipient consents, on the other. The first scenario is morally repugnant but ordinarily is not unlawful if the recipient is an adult. The second scenario will involve a criminal offence if sex occurs without consent.
9. Eighthly, during the sentencing hearing, defence counsel acknowledged that the complainant was vulnerable and that the appellant knew of her vulnerability. His Honour then commented 'and ... he plied her with alcohol' (ts 278). Defence counsel replied 'I think that would have to be accepted too, on the evidence' (ts 278). Defence counsel went on to comment that the appellant presented the alcohol to a girl who was vulnerable and self-harming. Defence counsel added 'that in itself says volumes. And at his age, in his position, not of authority, but his position of maturity, he should have known better. And he's tried his luck, for want of a better expression' (ts 278). The impugned finding by his Honour involved, in substance, an acceptance of defence counsel's concession. His Honour was entitled to characterise the appellant's conduct and his hope in relation to the provision of the alcohol in the manner his Honour did.
10. We are satisfied that, although the offending was not premeditated in that the offending was not a planned event, the appellant made a deliberate decision to exploit an 18 year old woman whom he knew to be vulnerable.
11. Ground 1 is without merit.

1. As we have mentioned, ground 2 asserts that it was not reasonably open to his Honour to find beyond reasonable doubt that the appellant had a 'serious attitudinal problem' in relation to women.
2. Counsel for the appellant submitted that, although the appellant was convicted in 2013 of assault occasioning bodily harm in respect of his wife, the conviction was spent. The offending occurred in May 2012 at the time of the appellant's separation from his wife.
3. It was argued that there was 'a considerable contextual distinction between [the appellant] having a relatively minor domestic altercation (reflected by the fact a spent conviction order was granted), whilst separated from his wife, and the offending before his Honour that involved a stranger he only met that day'. According to counsel, that alleged distinction '[reduced] the relevance of any thread drawn between the 2012 offence and the matter involving [the complainant]'.
4. It was submitted that, although the appellant and his wife were divorced in 2016, the appellant had reconciled with his wife and that fact was 'suggestive of a person [who] is capable of cooperating with women, not one [who] has an ongoing' serious attitudinal problem in relation to women.
5. Counsel emphasised the interval of about six years between the offence involving the appellant's wife and the offence involving the complainant together with the differences in the facts and circumstances of each offence.

1. It is apparent, upon a fair reading of the trial judge's sentencing remarks as a whole, that his Honour's conclusion that the appellant had a 'serious attitudinal problem' in relation to women was based on his Honour's findings in relation to the appellant's previous conviction in 2013 and the appellant's conviction for the offence in question.
2. His Honour's conclusion in relation to the appellant having a serious attitudinal problem in relation to women must be considered in the context of the following:

(a) the appellant's offence against his wife involved an assault on her physical integrity;

(b) the appellant's offence against the complainant involved an assault upon her physical integrity;

(c) the unchallenged findings by his Honour in relation to the appellant's offending against the complainant which we have set out at [44] above;

(d) his Honour's unchallenged findings that the appellant removed the complainant's pants and sexually penetrated her vagina with his penis while she was unconscious (ts 292);

(e) his Honour's unchallenged finding that, after having sexual intercourse with the complainant, the appellant had left her undressed in the back of his car (ts 292);

(f) the appellant's version of events (namely, that he had had sexual intercourse with the complainant with her consent; she had undressed herself; initially, the complainant had endeavoured to have sex with the appellant but could not do so because of her physical size and the close confines of the car; the appellant then had sex with the complainant in a different position; and the complainant was awake throughout the consensual sexual encounter) was rejected by the jury (ts 292); and

(g) his Honour's finding (which we have upheld in considering ground 1) to the effect that the appellant had given a significant quantity of alcohol to the complainant in the hope that she might become disinhibited and that he might be able to have sex with her.

1. We are satisfied that the facts and circumstances of the appellant's offending against the complainant do indicate that the appellant has a serious attitudinal problem with women in that he appears to think that he is entitled to have sexual intercourse with a woman who is asleep or unconscious.
2. In our opinion, it was reasonably open to the trial judge to be satisfied beyond reasonable doubt, solely on the basis of the factors to which we have referred at [62] above in relation to the appellant's offending against the complainant, that the appellant had a serious attitudinal problem in relation to women.
3. However, his Honour's conclusion was also supported by the appellant's previous conviction for assault occasioning bodily harm in respect of his wife.
4. The differences and the interval between each offence do not militate against his Honour's conclusion. The appellant's serious attitudinal problem was expressed in different ways (in May 2012 and then again in February 2018) against the women who were the victims of his offences.
5. Ground 2 is without merit.

1. As we have mentioned, ground 3 asserts that the length of the sentence imposed was manifestly excessive.
2. Counsel for the appellant submitted that, having regard to the criminality involved in the appellant's offending, the appellant's personal circumstances and antecedents and the sentences that have been imposed previously in reasonably comparable cases, the length of the sentence was unreasonable or plainly unjust. Counsel referred to the sentences imposed in FST v The State of Western Australia;[1] The State of Western Australia v Vartolo;[2] Alalyani v The State of Western Australia;[3] Kabambi v The State of Western Australia;[4] Lakay v The State of Western Australia.[5]

1. The general sentencing principles applicable to a ground of appeal which alleges that a sentence is manifestly excessive are well established. See, for example, Gleeson v The State of Western Australia.[6] It is unnecessary to repeat them.
2. The maximum penalty for the offence of non-aggravated sexual penetration without consent, contrary to s 325(1) of the Code, is 14 years' imprisonment.
3. In The State of Western Australia v Akizuki,[7] Steytler P, after carrying out a detailed review of previous sentencing cases, made these observations:

As might have been anticipated, this review of the cases reveals that the circumstances of sexual offending, and of sexual offenders, are almost infinitely variable. That, in turn, means that the sentence imposed in one case can provide only very limited guidance in deciding what sentence should be imposed for a similar offence in another case. However, some conclusions can be drawn, as follows:

(1) An average starting point for a case of penile penetration of the vagina without consent, absent circumstances of aggravation, is in the order of 7 years' imprisonment under the former sentencing regime, or around 4 years and 8 months' imprisonment under the transitional regime. That starting point takes no account of any factors in mitigation.

(2) Because the circumstances of sexual offending and sexual offenders are so variable, nothing will be achieved by specifying a range of sentences customarily imposed. The range of potential aggravating features is so huge that features of that kind can either dramatically increase the sentence imposed (bearing in mind that the maximum sentence for an aggravated offence is 20 years' imprisonment: s 326 of the Criminal Code) or have little or no effect on the sentence imposed. The range of potential mitigating factors is at least equally extensive. They might result in a very large reduction in sentence or little or no reduction.

(3) Nor will anything be achieved by specifying a different starting point for each category of sexual penetration without consent. It should not be assumed that one form of sexual penetration is necessarily more, or less, serious than another. As Wheeler JA pointed out in C v The State of Western Australia [2006] WASCA 261 [35], there is no 'hierarchy of sexual penetration'. For example, although digital penetration will ordinarily be less serious than penile penetration, that is not inevitably so. It might, in particular circumstances, be no less serious or even more serious. The seriousness of every offence of unlawful sexual penetration must be determined by its own individual circumstances: C [35] (Wheeler JA); Cavill [266] - [267] (Miller JA).

That seems to me to be about as much guidance as can be obtained from the cases. I appreciate that it is less than sentencing judges might wish. However, that is a necessary consequence of the court's obligation to tailor each sentence to the individual circumstances of the case, having regard for the maximum penalty provided by the legislature and, to the extent that they can be of assistance, sentences customarily imposed in similar circumstances.

1. A sentencing disposition which involves a starting point different from the starting point identified by Steytler P in Akizuki will not necessarily be manifestly excessive or manifestly inadequate. The facts and circumstances of a particular case may require a higher or a lower starting point.
2. Where an offender is convicted after trial of a single count of non‑aggravated penile penetration of the vagina, a sentence of 5 to 6 years' imprisonment is not unusual. See The State of Western Australia v Richards.[8] However, it must be emphasised that a sentence outside that range will not necessarily be manifestly excessive or manifestly inadequate. The circumstances of offending and offenders vary widely. Sentences significantly beyond the range identified in Richards may, having regard to the maximum penalty and the relevant facts and circumstances, be justified in particular cases. See The State of Western Australia v Hussian.[9]
3. We have considered a number of previous appeals against sentence, decided by this court or its predecessor, which involved the offence of non-aggravated sexual penetration without consent, contrary to s 325(1) of the Code. Those cases include Hopper v The Queen;[10] Mearns v The State of Western Australia;[11] Munmurrie v The State of Western Australia;[12] The State of Western Australia v Vartolo;[13] SJN v The State of Western Australia;[14] Singh v The State of Western Australia;[15] Costa v The State of Western Australia;[16] Kabambi v The State of Western Australia;[17] Lakay v The State of Western Australia;[18] McNally v The State of Western Australia;[19] The State of Western Australia v Jacoby;[20] and other cases cited by counsel for the appellant and counsel for the State. It is unnecessary to repeat the relevant facts and circumstances of the cases we have considered or the sentences that were imposed. There are some comparable features between some of those cases and the present case but there are also distinguishing features.
4. In our opinion, the facts and circumstances of the offence committed by the appellant were very serious. At the time of the offending, the appellant was aged 45 or 46 and the complainant was aged 18. The complainant was, to the appellant's knowledge, vulnerable. She was vulnerable because of her mental health issues and because she was asleep or unconscious when the offending occurred. The appellant saw that the complainant had scars on her arms and knew they were from self‑harm attempts. The appellant supplied the complainant with a large quantity of alcohol in the hope that she might become disinhibited. The offending has had a very significant ongoing adverse impact upon the complainant. The appellant did not have the mitigation that a plea of guilty would have brought. He did not evince any remorse or insight. He was not a person of prior good character. Although the offending was not premeditated, the appellant made a deliberate decision to exploit a vulnerable young woman.
5. We consider that the sentence of 5 years 8 months' imprisonment was commensurate with the seriousness of the offence. The sentence was broadly consistent with the sentencing pattern revealed by previous cases with at least some comparable features. We are satisfied, having regard to all relevant facts and circumstances and all relevant sentencing factors (including the mitigating factors mentioned by his Honour), that the length of the sentence was not unreasonable or plainly unjust.
6. Ground 3 fails.

1. We would grant the appellant an extension of time within which to appeal. Neither ground 1 nor ground 2 had a reasonable prospect of success. Leave to appeal on those grounds should be refused. The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] FST v The State of Western Australia [2011] WASCA 220.

[2] The State of Western Australia v Vartolo [2015] WASCA 53.

[3] Alalyani v The State of Western Australia [2018] WASCA 44.

[4] Kabambi v The State of Western Australia [2019] WASCA 44.

[5] Lakay v The State of Western Australia [2019] WASCA 46.

[6] Gleeson v The State of Western Australia [2019] WASCA 100 [57] ‑ [64].

[7] The State of Western Australia v Akizuki [2008] WASCA 267; (2008) 192 A Crim R 373 [68] ‑ [69].

[8] The State of Western Australia v Richards [2008] WASCA 134; (2008) 37 WAR 229 [49] (Steytler P; Martin CJ, McLure, Buss & Miller JJA relevantly agreeing).

[9] The State of Western Australia v Hussian [2020] WASCA 186 [120] (Buss P, Mazza & Beech JJA).

[10] Hopper v The Queen [2003] WASCA 153.

[11] Mearns v The State of Western Australia [2009] WASCA 153.

[12] Munmurrie v The State of Western Australia [2013] WASCA 167.

[13] The State of Western Australia v Vartolo [2015] WASCA 53.

[14] SJN v The State of Western Australia [2016] WASCA 215.

[15] Singh v The State of Western Australia [2017] WASCA 47.

[16] Costa v The State of Western Australia [2019] WASCA 3.

[17] Kabambi v The State of Western Australia [2019] WASCA 44.

[18] Lakay v The State of Western Australia [2019] WASCA 46.

[19] McNally v The State of Western Australia [2019] WASCA 93.

[20] The State of Western Australia v Jacoby [2020] WASCA 150.