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[2026] ACTSC 60
General information, not legal advice.
Supreme Court of the ACT
2026-03-17
Berman AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Cheema v Truman Citation: [2026] ACTSC 60 Hearing Date: 17 March 2026 Decision Date: 17 March 2026 Before: Berman AJ Decision: (1) The appeal against conviction is dismissed (2) The appeal against sentence is dismissed Catchwords: APPEAL – CRIMINAL LAW – Appeal from Magistrates Court– appeal from conviction – act of indecency – whether magistrate erred in finding act was indecent – where appellant found to have intentionally touched breast of complainant for three to five seconds – no innocent purpose for intentional touch – no error established APPEAL – CRIMINAL LAW – Appeal from Magistrates Court– appeal from conviction – armchair appeal – importance of appeals being confined and constrained by conduct of case at first instance APPEAL – CRIMINAL LAW – Appeal from Magistrates Court– appeal from sentence – whether magistrate erred in failing to make a non-conviction order – where appellant has no prior criminal history and is otherwise of good character – no error established – importance of general deterrence – entitlement of Uber passengers to not be taken advantage of Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) s 17 Cases Cited: Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 Dunks v R [2014] NSWCCA 134 Harkin v R (1989) 38 A Crim R 296 Marshall v R [2023] ACTCA 11 Mena v DPP [2024] ACTCA 34 R v Baden-Clay [2016] HCA 35; 258 CLR 308 Tamayo-Del-Solar v DPP [2025] ACTSC 120 Parties: Muhammad Jawad Arif Cheema (Appellant) Senior Constable Aaron Truman (Respondent) Representation: Counsel D Ager (Appellant) E Roff (Respondent) Solicitors King & York Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 19 of 2025 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 23 May 2025 Case Title: Muhammad Jawa Arif Cheema v Aaron Truman Court File Number: CAN 3990/2024 BERMAN AJ: EX TEMPORE REASONS (REVISED)
On 7 March 2025 the appellant in this matter, Muhammad Cheema, was convicted by a magistrate of committing an act of indecency without consent. The appellant was an uber driver and the complainant was one of his passengers. She alleged that, in the course of reaching over her to put her seatbelt on, he placed his left hand on her left breast for three to 5 seconds.
He denied that he had done so. He gave evidence. His case was that he had never assisted the complainant to put on her seatbelt, and had merely handed it to her.
It was made clear in the course of the hearing before the magistrate that the only issue for her to determine was whether he had done the physical act which was alleged. As her Honour said when giving judgment “the only matter for me to determine is whether or not the conduct alleged by the complainant occurred” and that “there is no dispute regarding the remaining elements of the offence”.
This is consistent with what the appellant’s counsel said at the hearing before the magistrate. He began his submissions by responding to the last submission made by the prosecutor which concerned the element of indecency and whether proof of sexual gratification was required. The appellant’s counsel said: This is not a matter… where those various other elements or aspects that your honour needs to be satisfied of are engaged. This is a case where there is an outright denial of the allegation, and accordingly, it falls to be determined in that fashion.
At the conclusion of her judgment, her Honour said, I am therefore satisfied that the defendant engaged in conduct – namely, the touching of the complainant’s left breast – and that this occurred in the way the complainant described. As there is no dispute as to any of the other elements, I find each and every element of the offence proved beyond a reasonable doubt. I therefore find the defendant guilty of the charge of act of indecency.
The appellant now appeals against his conviction relying on two grounds of appeal.
Ground (a) asserts that “the decision of the learned magistrate was affected by legal, factual or discretionary error, and that error was material”.
Ground (b) asserts “the learned magistrate gave inadequate reasons for finding the appellant’s act or acts were indecent”.
In the event that the appeal against conviction is dismissed, the appellant appeals against sentence imposed by the magistrate on the ground that it was “manifestly excessive in all of the circumstances”.
Appeal against conviction
Turning firstly to the appeal against conviction, it is argued that the magistrate made an error because she failed to consider whether the prosecution had proved beyond reasonable doubt that the deliberate act of touching the complainant’s breast was indecent. In particular, Mr Ager, who appeared for the appellant, submits that the magistrate failed to find beyond reasonable doubt that the touching of the complainant’s breast was accompanied by an intention to obtain sexual gratification.
That the magistrate failed to deal specifically with this issue is understandable given the way the matter was run in the court below. Her Honour clearly understood the appellant’s counsel to be saying that in the event that her Honour was satisfied beyond reasonable doubt that the appellant intentionally touched the complainant’s left breast as she alleged, there was no issue with the remaining elements which the prosecution has to prove where the offence alleged is committing an act of indecency without consent.
I interpret what Counsel said in the court below in exactly the same way.
That the appellant’s Counsel at first instance would adopt this approach is not at all surprising. He is to be commended for focusing his cross-examination of the prosecution witnesses, and his submissions on the real issue in the case. Given that the accused’s case was a complete denial of having ever touched the complainant’s breast, and that he did not advance at any stage an innocent purpose for having done so, or suggest even the possibility that the touching was accidental, it is not at all surprising that Counsel would concede that the only element in dispute was whether the accused intentionally touched the complainant’s left breast.
One wonders what submission he could have made on the issue as to whether the prosecution could prove beyond reasonable doubt that the appellant’s intentional touching of the complainant’s breast for three to 5 seconds was indecent. There was no need for him to assist the complainant to put on her seatbelt. She was an adult woman perfectly capable of doing so. And, at the risk of repetition, he denied having assisted her to put on her seatbelt beyond merely handing it to her.
It is impossible to think that any member of society, applying ordinary standards of respectable people within the community, might regard what the appellant was found to have done as being anything other than indecent. What innocent purpose could the appellant have for intentionally touching the complainant’s breast for between three to 5 seconds?
The appellant submits that it is part of proof of indecency for the prosecution to prove that the touching of the complainant’s breast was for the purpose of obtaining sexual gratification, at least in the circumstances of this case. Assuming, without deciding for the moment, that that is so, counsel for the appellant in the court below clearly was unable to advance any submission which might have suggested a purpose other than sexual gratification for the appellant’s intentional touching.
Appeal against sentence
Having earlier dealt with the appellant's appeal against his conviction and rejecting both grounds of appeal, I heard submissions from Mr Ager as to the appeal against the sentence imposed by the magistrate.
In the court below, her Honour was asked to exercise her discretion pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT), that is, not to impose a conviction but to impose a bond. Her Honour did not consider that a section 17 disposition would adequately reflect the purposes of sentencing, namely, general deterrence, denunciation and recognition of harm. Her Honour, therefore, convicted the appellant and placed him on a bond to be of good behaviour for a period of 18 months subject to a number of conditions.
The focus of Mr Ager's submissions on sentence was the decision by the magistrate to convict his client. Mr Ager submits that in all the circumstances of this case, particularly the relative lack of seriousness of the offence and his client's otherwise good character, her Honour was in error to fail to take up the suggestion that she deal with this matter by way of an order under section 17.
I'm grateful to Mr Ager for having summarised the principles of law I should apply in his written submissions. I accept everything that Mr Ager has written. Appellate intervention is not justified simply because an appellate court might have a different view as to the most appropriate sentence nor is it justified in cases where merely the sentence is markedly different from those imposed in other cases. What the appellant must demonstrate is that it may be inferred that there was a misapplication of principle by the sentencing judge although when and how the error occurred is not apparent from the judge's reason.
In approaching the task, it is necessary to view the sentence in the context of the maximum sentence proscribed for the offence, the standards of sentencing customarily observed for it, the relative objective seriousness of the instance offence and the personal circumstances of the offender. As I have said, Mr Ager refers in particular to the relative objective seriousness of the instance offence and the personal circumstances of the offender.
Dealing with the objective gravity of the offence, this was an offence where the appellant deliberately and intentionally touched the breast of an Uber passenger of his for between three to five seconds. It is apparent that this touching involved skin to skin contact. This has had significant effects upon the victim of the appellant's offending. She spoke about those in her victim impact statement. I'm not going to repeat them in this judgment, but it is necessary that I pay full regard to the impact of the appellant's crime on the victim of it.
Indecent assaults vary in their objective seriousness but the impact that is felt by a victim of offences of that kind does not neatly fit in and entirely match the way lawyers regard the seriousness of such offences. That said, I do accept that the authorities would suggest that what the appellant did in this case is towards the lower end of objective seriousness.
Orders
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date:
Cheema
Truman [2026] ACTSC 60
Once again, this is not surprising. Especially in the absence of evidence from the appellant as to why he might have intentionally touched the complainant’s breast for three to five seconds, counsel was entitled to assume that there was no possibility of raising a reasonable doubt about whether this element had been proved. Further, the magistrate was fully entitled to draw the same conclusion.
After all, the appellant was not a doctor, tattoo artist, bra fitter, or someone else who might have a legitimate reason for intentionally touching a woman’s breast. He was an Uber driver.
The only conclusion which the appellant’s counsel could come to, the only conclusion which the magistrate could come to, and the only conclusion which I can come to, is that there is no interpretation of the appellant’s conduct as found other than that he engaged in it for the purpose of sexual gratification.
Had the matter been raised as an issue in trial there is evidence the prosecution could have pointed to which supports the proposition that the appellant’s purpose in touching the complainant’s breast was to obtain sexual gratification. He touched the complainant on an inherently sexual part of the body. The photograph of complainant in the dress she was wearing that night makes it inevitable that there was skin to skin contact. There was no need for him to assist the complainant to put on her seatbelt. The complainant’s description of his conduct suggests that he went far beyond what was necessary, even if it was his purpose to assist the complainant with her seatbelt. These matters support the inference, advanced by the prosecution on this appeal, that the “appellant was feigning an attempt to put the complainant seatbelt on in order to provide the opportunity to touch her indecently”. I accept the prosecution argument that “the appellant’s conduct, as found, admits of no alternative inference or interpretation”.
In any case, I do not regard it as necessary that the prosecution prove the appellant did what he did for the purposes of sexual gratification, because a female’s breasts are “inherently sexual parts of the female body”: see Tamayo-Del-Solar v DPP [2025] ACTSC 120 at [35]. For many years the law has been, in the ACT as well as NSW, as explained in Harkin v R (1989) 38 A Crim R 296 at 301 where Lee J said: If the appellant intentionally touched the breast of the girl…it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent… The purpose or motive of the appellant in behaving in that way is irrelevant.
That is enough to deal with the first ground of appeal against conviction. In the circumstances of this case, the magistrate has made no error in the way in which she dealt with the elements of the offence with which the appellant was charged.
I turn now to the second ground of appeal which complains that the learned magistrate gave inadequate reasons for finding the appellant’s act or acts were indecent.
The magistrate did all that was required of her. As I have said repeatedly, it was admitted by the appellant’s counsel below that, in the event her Honour found beyond reasonable doubt the appellant did what the complainant alleged, there was no dispute that she would find that it was an indecent act. In such circumstances, there was no need for her Honour to do more than simply note that concession and it was certainly not an error for her Honour to fail to give any reasons for accepting that concession, particularly as the reason for acceptance of the concession is obvious.
I should make two final observations. First, as the High Court makes clear in R v Baden- Clay [2016] HCA 35; 258 CLR 308 at [59]-[63], appeals should be confined and constrained by the conduct of the appellant’s case at first instance. As I hope I have made clear, that did not happen in this case.
Secondly, and relatedly, in Dunks v R [2014] NSWCCA 134 at [52], RA Hulme J, with whom the other members of the court agreed, referred to the appeal before him as being an “armchair appeal”… “a description often used in a deprecating fashion when points never raised at trial are sought to be raised on appeal”. His Honour noted that the term was explained by Johnson J in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170] as follows: ... where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155].
Such appeals have been deprecated in this jurisdiction too, see Mena v DPP [2024] ACTCA 34 at [167] where the court in Marshall v R [2023] ACTCA 11 was quoted at [170] as describing an appeal: where counsel not involved in the trial “has sat down and gone through the whole of the transcript and [the] summing up looking for error, without reference to the manner in which the trial was conducted: Munro v The Queen [2014] ACTCA 11 (Munro) at [128], referring to R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15].
This appeal against conviction easily fits that description.
The appellant is a man with no previous convictions. That speaks to his good character, of course, but there was also evidence called in the court below of other aspects of his character. I accept that this offending is likely to be an isolated breach of otherwise lawful behaviour by the appellant. Not only did he call evidence as to his good character, but he relied on the fact that, as an Uber driver, he had done something in the order of 7,000 trips without any apparent complaint, apart from the one which brought him before the courts on this occasion.
On the other hand, it has to be remembered that the appellant has expressed no remorse for what he did and continues to deny it to this day, despite a magistrate having found him guilty and despite me having accepted the correctness of her Honour's decision. When the judge makes an assessment as to the likelihood that an offender will commit further offences in the future, one matter the judge considers is whether the offender has accepted responsibility for their wrongdoing, whether they are sorry for what they did and whether they desire to avoid such offending in the future.
In this case, the lack of remorse expressed by the appellant is a significant hurdle to me finding that the appellant has any desire from within to avoid future offending of this kind. It is, therefore, important that the sentence imposed upon him makes it clear to him that if he does do it again, he will be significantly punished.
One other matter I should raise is this. Passengers in taxis and other ride-share vehicles are at times vulnerable. People are entitled to go out, have more to drink than they should, and then, quite sensibly avoiding driving home, get home by other means. Often that will be by using an Uber. Although the complainant in this case was not vulnerable in the sense that she was alone, there are many occasions where vulnerable passengers are at risk of being assaulted in this way by those driving them. There needs to be a significant aspect of general deterrence in any sentence imposed upon a rideshare driver when he has taken advantage of someone who may have had one or two drinks more than they should have. I'm certainly not criticising the complainant in this case at all. I am speaking more generally about the risk that we all accept when we get into a ride-share vehicle, having had a few drinks beforehand.
General deterrence is important in this matter. Not only is it the case that Mr Ager has not persuaded me that the magistrate made any error in this case, I am able to say that I would have imposed exactly the same sentence as her Honour did. The appeal against sentence is therefore dismissed