Majid v R

Court of Criminal Appeal (NSW)|2010-05-31|Before: Simpson J, Johnson J, McCallum J, Ms J, Callum J

The Applicant's Subjective Circumstances 17 The Applicant was born in February 1981. He was 25 years of age at the time of the offences and 27 years of age at the time of sentence. 18 The Applicant was born in Afghanistan and is the second youngest of six children. The Applicant's family fled Afghanistan to Pakistan during the Russian invasion of Afghanistan in 1988 when the Applicant was seven years of age. The Applicant and his family resided in Pakistan until 1993 when the family emigrated to Australia, taking up residence in Sydney. The Applicant commenced his education in Afghanistan and continued it in Pakistan, commencing Year 7 following his arrival in Sydney. He completed the Higher School Certificate and achieved good results. 19 While studying in Sydney, he commenced work at the Haymarket Markets selling soft drinks and remained employed in this position until he was 20 years of age. Thereafter, the Applicant was employed as a security guard with the State Rail Authority for two years before taking up his customer service position with McDonalds in September 2003. By the time of his arrest, he had worked his way up to a managerial position. 20 There was evidence that the Applicant had personally witnessed atrocities prior to his family leaving Afghanistan. The Applicant has a noticeable speech impediment (a stutter) which was said to relate to anxiety arising from his experiences as a child in Afghanistan. 21 Prior to his arrest, the Applicant had been in a relationship for seven years and had become engaged in October 2004. His fiancé had an eight-year old son from a previous relationship and the Applicant had raised this child as his own. In October 2007, a daughter was born of the relationship between the Applicant and his fiancé. By June 2008, the Applicant's partner had moved to Melbourne with her son and their daughter, so as to be with her own family. 22 The Applicant has a criminal history. In February 2001, he was fined and disqualified for a range of traffic offences. In November 2001, the Applicant was sentenced to terms of imprisonment by way of periodic detention for three offences of driving whilst disqualified. In January 2002, he was fined for obtaining money by deception. In April 2002, the Applicant was sentenced to three months' periodic detention for introducing a small quantity of a drug into a detention centre. In May 2002, the Applicant was given a two-year good behaviour bond for not complying with a condition of an earlier good behaviour bond and, in April 2003, he received a suspended sentence of nine months' imprisonment for a further offence of not complying with a condition of a good behaviour bond and for driving whilst disqualified. In August 2003, on a Crown appeal against inadequacy of this sentence, the District Court imposed a suspended sentence of imprisonment for 18 months for these offences. 23 In July 2003, the Applicant was fined and placed on a good behaviour bond for common assault and possession of a prohibited drug. 24 On 7 March 2005, the Applicant appeared in the Penrith District Court and was sentenced for offences of malicious wounding in company and assault occasioning actual bodily harm in company, with suspended terms of imprisonment for 20 months being imposed upon conditions that he accept supervision by the Probation and Parole Service, and attend the Multicultural Mental Health Service and undergo treatment and counselling as directed. Records of the Probation and Parole Service reveal that the Applicant attended two appointments with a sessional psychologist at the Multicultural Mental Health Service in 2005. 25 The 20-month suspended sentence expired on 6 November 2006, one month before the commission of the first sexual assault offence. 26 A presentence report from the Probation and Parole Service was tendered at the sentencing hearing, together with a psychological report dated 16 June 2008 of Therese Britton, clinical psychologist, Forensic Psychology Services, Sex Offender Programs with the Department of Corrective Services. The Applicant was assessed, by reference to static and dynamic risk-assessment factors, as being at the high end of the moderate-risk category with respect to sexual reoffending. 27 The Applicant was assessed on 27 November 2008 by Mr Watson-Munro, clinical psychologist, and a report of Mr Watson-Munro dated 16 December 2008 was before the sentencing Judge. Mr Watson-Munro stated that the Applicant had symptoms suggestive of post-traumatic stress disorder. The Applicant informed Mr Watson-Munro of a history of substance abuse including alcohol, cannabis, amphetamines and cocaine. 28 The Applicant's mother, Zargona Majid, and Mr Watson-Munro gave evidence at the sentencing hearing. 29 The Applicant also gave evidence at the sentencing hearing, by which time he acknowledged his guilt and extended an apology to the victim.

Grounds of Appeal 30 The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - his Honour erred in failing to express the sentences in accordance with s.44 Crimes (Sentencing Procedure) Act 1999 in that, when sentencing for Count 2, his Honour set a total sentence of 14 years with a non-parole period of 10 years, contrary to s.44(2), and with no finding of "special circumstances" for the extension of the total sentence by approximately eight months.

(b) Ground 2 - his Honour gave insufficient weight to the fact that the Applicant was suffering from post-traumatic stress disorder at the time of, prior to and after the commission of these offences.

(d) Ground 4 - his Honour gave insufficient weight to the fact that the Applicant would be serving his sentence in protective custody.

(e) Ground 5 - the sentences imposed are manifestly excessive.

Ground 1 - Non-Compliance with s.44 Crimes (Sentencing Procedure) Act 1999 in Passing Sentence for Second Count 31 The Applicant was sentenced for two offences of aggravated sexual intercourse without consent, each of which carried a standard non-parole period of 10 years. For Count 1, a term of imprisonment of 12 years was imposed with a non-parole period of nine years. With respect to the second count, the sentencing Judge determined to fix a term of imprisonment for 14 years with a non-parole period of 10 years. The sentence for the second count was partially accumulated, with a direction that it commence six months after the commencement of the sentence for the first count. 32 With respect to the first count, his Honour found that the offence did not fall within the mid-range but was not significantly below it (ROS12.7). With respect to the second count, his Honour found that it was one to which the standard non-parole period of 10 years should apply (ROS13.2). Accordingly, the sentencing Judge found that the second count lay within the middle of the range of objective seriousness.

Submissions 33 Mr Dawe QC, for the Applicant, submits that the sentence imposed for the second count did not comply with the requirements of s.44 Crimes (Sentencing Procedure) Act 1999. It was submitted that no finding of "special circumstances" was made so that, if his Honour intended to fix a non-parole period of 10 years on the second count, to comply with s.44(2), the balance of term ought to have been three years and four months and not four years. 34 The Crown acknowledged that a mathematical error appeared to have resulted in the manner complained of. Although his Honour appeared to have failed to comply strictly with the requirements of s.44, the Crown submitted that it did not follow that the error would necessarily require the intervention of this Court: Itaoui v R [1005] NSWCCA 415; 158 A Crim R 233 at 237-238 [17]-[18]. In any event, the Crown submitted that any adjustment should affect the head sentence only and not the non-parole period with respect to the second count.

Decision 35 The problem identified under this ground arises from the sentencing Judge's non-compliance with s.44 Crimes (Sentencing Procedure) Act 1999. The Court is first required by s.44(1) to set a non-parole period for the sentence with the balance of term to be calculated by reference to s.44(2) of the Act. If his Honour had followed the section, then the balance of term would flow from the formula in s.44(2) given the absence of a finding of "special circumstances". This formula would have seen a balance of term of three years and four months. 36 From a discussion which ensued between the sentencing Judge and the Crown after sentences were pronounced, it seems clear that his Honour was looking at the total picture, and not the precise sentence being passed on the second count. However, no finding of "special circumstances" had been made. His Honour did not purport to apply the practice recognised in Hejazi v R [2009] NSWCA 282 at [35]-[36]. 37 In the circumstances of the present case, error has been demonstrated in the calculation of the head sentence on the second count. This is not a mere technical error flowing from the announcement of sentence in a form which did not comply with s.44. To give effect to s.44 and the sentencing Judge's intention, the sentence to be fixed for Count 2 ought to have comprised a non-parole period of 10 years with a balance of term of three years and four months. I will return to this issue after considering the other grounds of appeal.

Ground 2 - Insufficient Weight Given to Applicant's Post-Traumatic Stress Disorder

Submissions 38 Mr Dawe QC submitted that the sentencing Judge had given insufficient weight to the fact that the Applicant was suffering from post-traumatic stress disorder at the time of, prior to and after the commission of these offences. 39 The Crown submitted that the sentencing Judge had considered submissions by reference to this subjective aspect, and had taken them into account and given them such weight as his Honour considered was deserved in the circumstances of the case.

Decision 40 The second, third and fourth grounds of appeal complain that the sentencing Judge had given "insufficient weight" to different aspects of the Applicant's subjective case in passing sentence. In Stephens v R [2009] NSWCCA 240, Grove J (McClellan CJ at CL and RA Hulme J agreeing) observed at [16]-[18], that there are inherent problems in a ground expressed in that fashion succeeding, as the ground tacitly concedes that some weight had been placed upon the factor by the sentencing Judge. Circumstances in which matters of weight will justify intervention by this Court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]. 41 The sentencing Judge referred to the evidence of Mr Watson-Munro concerning the Applicant's post-traumatic stress disorder and substance abuse. Having considered that evidence and the submissions made by reference to it, his Honour accepted the Crown submission that whilst "his background and his drug abuse may have had some effect on his impulse control", the Applicant knew that what he was doing was wrong (ROS11-12). 42 The sentencing Judge had regard to the evidence of the Applicant's post-traumatic stress disorder and the possible impact of that condition on his commission of these offences. No doubt, his Honour had regard to the fact that the triggering incidents for the condition had occurred as long ago as 1988 and that the Applicant had lived, been educated and worked in Australia since 1993 in circumstances where he had progressed in his employment to a managerial position with the restaurant chain which employed him. It is difficult to see how the Applicant's condition could have warranted greater weight on sentence in the circumstances of this case. 43 No error has been demonstrated in this respect and I would reject the second ground of appeal.

Ground 3 - Insufficient Weight Given to Applicant's Expression of Contrition and Remorse

Submissions 44 Senior counsel for the Applicant submitted that, although he had defended the matters at trial and denied the commission of the offences, the Applicant had acknowledged his guilt and apologised to the victim as part of the sentencing proceedings and that this expression of contrition and remorse, although belated, ought to have been given greater weight by the sentencing Judge. 45 The Crown submitted that the expression of remorse and contrition in this case deserved minimal weight and that no error had been demonstrated by the Applicant in the sentencing Judge's approach to this issue.

Decision 46 Once again, this ground complains that "insufficient weight" was given by the sentencing Judge to this issue and the observations expressed at [40] above are pertinent. 47 The Applicant had pleaded not guilty to the charges and proceeded to trial. The victim's evidence had been challenged at trial and the Applicant himself had given evidence denying the commission of the offences. He maintained his denial when spoken to by the probation officer for the purpose of preparation of the presentence report. Any admission of guilt and expression of contrition and remorse appears to have emerged for the first time some months after he was convicted by the jury in April 2008. 48 A sentencing Judge is not obliged to accept assertions of contrition made by an offender: R v Stafrare (1977) 96 A Crim R 452 at 454. In R v Winchester (1992) 58 A Crim R 345 at 360, Hunt CJ at CL observed that the extent to which a plea of guilty evidences contrition and remorse, so as to attract leniency, depends to a large degree upon whether or not the plea resulted from a recognition of the inevitable. Here, an admission was made after conviction at trial, accompanied by a submission that the Applicant's contrition and remorse ought be taken into account in his favour on sentence. The sentencing Judge was entitled to approach this submission upon the basis that it was a belated concession made only after the reality of conviction by the jury. 49 The sentencing Judge noted that the Applicant had shown remorse for the victim in his statements to Mr Watson-Munro and to the Court, but observed that the "expression of remorse must have a hollow sound to the victim who has had to endure the trial" and cast her mind back to the events of December 2006 and January 2007 (ROS8.5). His Honour had regard to the psychological evidence from Ms Britton and Mr Watson-Munro concerning the Applicant's risk of reoffending (ROS10). His Honour took into account the remorse which the Applicant expressed at the sentencing hearing (ROS11) and found that the Applicant, by his admission of guilt, accepted responsibility for his actions and for the wrong which he had committed to the victim (ROS12). 50 An assessment of the weight to be attached to the Applicant's contrition and remorse, and its relevance to the prospect of reoffending, was undertaken by the sentencing Judge, no doubt in conjunction with the Applicant's history of offending and reoffending in circumstances where a range of non-custodial options had been utilised by sentencing Courts. The Applicant had completed a period of conditional liberty as part of the suspended sentence just one month before the commission of the first sexual assault offence in December 2006. 51 No error has been demonstrated in the way in which the sentencing Judge had regard to the very late expression of contrition and remorse by the Applicant. 52 I would reject the third ground of appeal.

Ground 4 - Insufficient Weight Given to Applicant Serving his Sentence in Protective Custody

Submissions 53 It was submitted for the Applicant that the sentencing Judge had given insufficient weight to the fact that the Applicant was in protective custody at the time of sentence and that this error led to the imposition of an excessive sentence. 54 The Crown submitted that the sentencing Judge's approach to this aspect was correct and consistent with principles laid down by this Court.

Decision 55 Once again, this ground complains that "insufficient weight" was attached to a factor by the sentencing Judge and the observations at [40] above are repeated. 56 During the course of sentencing submissions, the sentencing Judge raised with defence counsel the absence of evidence that the Applicant would serve his sentence in protective custody. Defence counsel submitted that the Applicant wished to remain in protective custody, and it was submitted that that type of custodial arrangement would be difficult for the Applicant because of his "underlying difficulties and dispositions" (T21, 17 December 2008). In the course of submissions, his Honour had observed that there was no evidence before the Court as to whether or not the Applicant's access to rehabilitation programs would be restricted nor was there evidence concerning the likely duration of protective custody and difficulties that may entail. 57 In the course of his remarks on sentence, his Honour nevertheless referred to the Applicant's protective custody (ROS6.5). 58 This Court has made clear that the relevance of protective custody on sentence will depend upon a range of matters, including what the evidence reveals concerning the likely duration of protective custody and the practical restrictions placed upon an offender, including access to programs within the prison system, as a result of protective custody. There is no automatic conclusion or formula to be applied in the absence of evidence in the particular case: R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 at [19]-[21]; Clinton v R [2009] NSWCCA 276 at [24]-[25]; R v Jarrold [2010] NSWCCA 69 at [27]-[29]. 59 Error has not been established in accordance with the fourth ground of appeal which ought be rejected.

Ground 5 - The Sentences Imposed are Manifestly Excessive

Submissions 60 Senior counsel for the Applicant relied upon the accumulation of matters referred to in the previous grounds in support of a submission that the sentences imposed were manifestly excessive. 61 The Crown submitted that these were serious offences committed against a 15-year old girl in circumstances that involved serious breaches of trust and abuse of a position of authority. When regard is had to the standard non-parole period applicable to Counts 1 and 2, the objective seriousness of the offences and other aspects of the case, the Crown submitted that no error had been demonstrated and that the sentences were not manifestly excessive.

Decision 62 The question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. 63 The Applicant, then aged 25 years, committed separate and serious sexual assault offences upon a 15-year old girl. Having regard to the employment relationship between the Applicant and the victim, the offences constituted a breach of trust on the part of the Applicant. The Applicant used force and penile/vaginal intercourse took place on both occasions. The standard non-parole period had direct application to this case as the Applicant was convicted after trial. The sentencing Judge assessed the first sexual assault offence as not falling within the mid-range but not being significantly below it, and the second sexual assault offence was assessed as lying within the middle of the range of objective seriousness, so as to attract application of the standard non-parole period. These assessments with respect to objective seriousness were not challenged in any ground of appeal. 64 The second offence involved a repeated sexual assault offence against the victim committed about a month after the first offence. Both were serious offences involving the taking of the victim to an isolated place so that the Applicant could use her, without her consent, for his own sexual purposes. 65 The Applicant's criminal history revealed a range of offences for which non-custodial sentences had been passed. It may be inferred that the Applicant's troubled and traumatic childhood in Afghanistan had been taken into account in his favour on sentence on more than one occasion. However, by December 2006, the Applicant had been living in Australia for 13 years and had been raised and educated here and was in gainful employment. 66 The application and operation of the standard non-parole period provisions to the sentencing of the Applicant assist an understanding of the length of the sentences imposed. It has not been demonstrated that the sentences imposed were unreasonable or plainly unjust. 67 I would reject the fifth ground of appeal.

Conclusion 68 No error has been demonstrated by reference to any of the grounds of appeal, apart from the error referred to in the first ground of appeal. This Court should intervene only to the extent necessary to correct the error found under the first ground of appeal. In light of the findings of the sentencing Judge, I am satisfied that a lesser sentence is warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912 in the form of a balance of term of three years and four months instead of four years. However, I am satisfied that no lesser non-parole period than one of imprisonment for 10 years is warranted with respect to the second count. 69 I propose the following orders:

(b) sentence of imprisonment on the second count is quashed and, in its place, the Applicant is sentenced to a non-parole period of 10 years commencing on 13 October 2008 and expiring on 12 October 2018 with a balance of term of three years and four months commencing on 13 October 2018 and expiring on 12 February 2022;

(c) appeal dismissed with respect to sentences imposed on Counts 1 and 3. 70 The earliest date upon which the Applicant will be eligible for release on parole remains 12 October 2018. 71 McCALLUM J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Itaoui v R [1005] NSWCCA 415; 158 A Crim R 233 Hejazi v R [2009] NSWCA 282 Stephens v R [2009] NSWCCA 240 R v Baker [2000] NSWCCA 85 Ryan v R [2009] NSWCCA 183 CASES CITED : Cao v R [2010] NSWCCA 109 R v Stafrare (1977) 96 A Crim R 452 R v Winchester (1992) 58 A Crim R 345 R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 Clinton v R [2009] NSWCCA 276 R v Jarrold [2010] NSWCCA 69 Markarian v The Queen [2005] HCA 25; 228 CLR 357

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