Majid v R

Court of Criminal Appeal (NSW)|2016-10-19|Before: Payne JA, Price J, Davies J

Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/135562 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 18 December 2008 Before: Puckeridge DCJ File Number(s): 2007/11853

Judgment

PAYNE JA: I agree with the reasons of Davies J and the orders his Honour proposes.
PRICE J: I agree with Davies J.
DAVIES J: The Appellant was convicted after trial in the District Court before Judge Puckeridge QC and a jury of two counts of aggravated sexual intercourse without consent and one count of detain for advantage. The maximum penalty for aggravated sexual intercourse without consent is 20 years imprisonment. There is a standard non-parole period of ten years. The maximum penalty for detaining for advantage is 14 years imprisonment. There is no standard non-parole period.

The facts

The facts of the offending are conveniently summarised in the earlier judgment of this Court as follows:

Count 1

In December 2006, the victim, a 15-year old girl, was employed at a McDonald's store in the suburbs of Sydney at which the Appellant (then aged 25 years) was a manager. On the night of 7 December 2006, the victim was working late and the Appellant, who was the shift manager, offered to drive her home. Instead, the Appellant drove the victim to a car park at Auburn. Once at the car park, the Appellant pushed the victim's seat backwards, undid her trousers and had penile/vaginal intercourse with her against her will. Whilst this was happening, the victim tried to force the Appellant away by using her arms and legs and kicking him.

Counts 2 and 3

By 11 January 2007, the Appellant was no longer the immediate supervisor of the victim, he having been moved to another store to be trained for further advancement. The victim was not rostered to work on 11 January 2007. However, the Appellant's sister was unable to work a shift as rostered and she telephoned the victim to ask if she could work her shift. The victim said that she would be unable to do so, as it was a late-night shift and she had no means of travelling home as her parents were away. The Appellant's sister advised the victim that arrangements could be made for her to be taken home. At this time, the victim was aware that the Appellant no longer worked at that particular restaurant. The victim accepted and agreed to work the shift on the basis that arrangements would be made for her to be taken home at the end of the shift.
When she arrived at the restaurant, a female employee told her that the Appellant would be driving both her and the victim home. The victim was concerned about getting into the car with the Appellant, but thought that it would be all right if the other employee was there.
The Appellant attended the restaurant and said that he would take the victim home as the other employee was still cleaning up. The victim wished to wait for the other employee to accompany her in the car, but she felt she had no choice.
Once in the car, the Appellant drove in the wrong direction and the victim started yelling and screaming at him to take her home. She unbuckled her seatbelt and went to grab the door. The Appellant grabbed the seatbelt and closed it again and started driving faster.
The Appellant drove the victim to the same car park where he had sexually assaulted her on 7 December 2006. He parked the vehicle, put the seat backwards and had penile/vaginal intercourse with her. She was kicking her legs and trying to push him off but he was too strong.
Following this, the Appellant drove the victim to her aunt's house, where she was residing. She did not say anything to her aunt about what had happened as she was in shock and was scared. She had not said anything to her parents about the first offence. The victim complained to a friend about the offences, and a report was made to police on 24 January 2007.
The Appellant gave evidence at the trial. He said that the victim had been flirting with him at work. He maintained that there was passionate kissing between himself and the victim on 7 December 2006, but that no further sexual act beyond that was performed on that occasion.
With respect to the offences on 11 January 2007, it was the Appellant's evidence at trial that the victim had telephoned him and said that she wanted to get a lift from him after the shift. He said that he wanted to take the victim home as he wished to talk to her about what had occurred in the vehicle on 7 December 2006, and he wished to tell the victim that she was too young for him, that he had a partner and did not wish to upset the relationship which he had with his partner.
Clearly, the jury rejected the Appellant's version of both incidents and accepted the victim's account of the offences.
The Appellant was arrested on 12 March 2007 and remained in custody until he was released on conditional bail on 20 March 2007. He remained on bail until conviction on 22 April 2008 and has been in continual custody since that date.

Subjective matters

These matters are also conveniently summarised in the earlier judgment of this Court as follows:
The Appellant 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.
The Appellant was born in Afghanistan and is the second youngest of six children. The Appellant's family fled Afghanistan to Pakistan during the Russian invasion of Afghanistan in 1988 when the Appellant was seven years of age. The Appellant and his family resided in Pakistan until 1993 when the family emigrated to Australia, taking up residence in Sydney. The Appellant 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.
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 Appellant was employed as a security guard with the State Rail Authority for two years before taking up his customer service position with McDonald's in September 2003. By the time of his arrest, he had worked his way up to a managerial position.
There was evidence that the Appellant had personally witnessed atrocities prior to his family leaving Afghanistan. The Appellant has a noticeable speech impediment (a stutter) which was said to relate to anxiety arising from his experiences as a child in Afghanistan.
Prior to his arrest, the Appellant 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 Appellant had raised this child as his own. In October 2007, a daughter was born of the relationship between the Appellant and his fiancé. By June 2008, the Appellant's partner had moved to Melbourne with her son and their daughter, so as to be with her own family.
The Appellant has a criminal history. In February 2001, he was fined and disqualified for a range of traffic offences. In November 2001, the Appellant 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 Appellant was sentenced to three months' periodic detention for introducing a small quantity of a drug into a detention centre. In May 2002, the Appellant 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 the inadequacy of this sentence, the District Court imposed a suspended sentence of imprisonment for 18 months for these offences.
In July 2003, the Appellant was fined and placed on a good behaviour bond for common assault and possession of a prohibited drug.
On 7 March 2005, the Appellant 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 Appellant attended two appointments with a sessional psychologist at the Multicultural Mental Health Service in 2005.
The 20-month suspended sentence expired on 6 November 2006, one month before the commission of the first sexual assault offence.
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 Appellant 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.
The Appellant 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 Appellant had symptoms suggestive of post-traumatic stress disorder. The Appellant informed Mr Watson-Munro of a history of substance abuse including alcohol, cannabis, amphetamines and cocaine.
The Appellant's mother, Zargona Majid, and Mr Watson-Munro gave evidence at the sentencing hearing.
The Appellant also gave evidence at the sentencing hearing, by which time he acknowledged his guilt and extended an apology to the victim.

Ground 1: Muldrock error

After the Sentencing Judge had discussed the circumstances of the offending and the Appellant's subjective circumstances his Honour said this: It had been put on behalf of the offender that the offence on 7 December 2006 was not in the mid range of objective seriousness. The offence subject (sic) of the first count and the offence the subject of the second count carries a standard non-parole period of ten years. It is in relation to that standard non-parole period that the court was addressed as to whether the offence fell in the mid range of seriousness or not. I accept in relation to the offence on 7 December 2006, balancing those matters which I have previously considered and with the absence of calculated planning by the offender, that it does not fall within the mid range but not significantly below it. The offender took advantage of a young person and ought to have known better. I would consider that the appropriate sentence in relation to the first count would be a period of imprisonment of twelve years and a non-parole period of nine years. I have taken into account the background of the offender and taken into account the effect of what he observed and saw in the turmoil in Afghanistan and the effect of what occurred when a bomb went off in the vicinity of his home. Having taken that into account, I do not consider that there should be any further discount in respect of that non-parole period of nine years. In respect of the second count which as I have stated is of a more calculated nature I consider that in the circumstances of that offence a standard non-parole period should apply. The sentence in relation to that offence will be a period of imprisonment of fourteen years with a non-parole period of ten.
The Appellant submitted that the passage set out above and the sentences actually imposed for counts 1 and 2 demonstrate that the Sentencing Judge fell into Muldrock error both by giving primary or determinative significance to the standard non-parole period and by engaging in a two-stage approach. With regard to the latter, the Appellant submitted that the Sentencing Judge made a finding as to where in the range of objective seriousness the offence fell, finding that it answered the description of an offence "not significantly below" the mid-range, and then considered the other matters which might warrant any "further discount" to that period and concluded that they did not. The Appellant submitted that that was a clear indication of two-stage reasoning.
The Appellant submitted that the Sentencing Judge treated the subjective factors as relevant to the assessment of objective seriousness of the offence. That was contrary to what was said in Muldrock at [22] and [27]. Further, by taking the subjective circumstances into account only in so far as they acted on the objective seriousness assessment, the Appellant submitted that the Sentencing Judge both gave primary or determinative significance to the standard non-parole period and failed to give the subjective circumstances full weight as he should have done had he applied the instinctive synthesis approach to sentencing.
The Crown accepted that the Sentencing Judge gave the standard non-parole period determinative significance and adopted a two-staged approach in accordance with R v Way (2004) 60 NSWLR 168; [2014] NSWCCA 131. The Crown also accepted that this Court on the first appeal did not correct this error as it only intervened to the extent necessary to give effect to s 44 of the Sentencing Procedure Act. The Crown submitted that by reason of the errors it was necessary for this Court to exercise the sentencing discretion afresh in accordance with Kentwell. In that way, it is not necessary to determine grounds 2 and 3.
The Crown's concession was properly made. It is apparent from a reading of the portion of the Remarks on Sentence set out at [##43] above that the Sentencing Judge gave primary or determinative significance to the standard non-parole period and engaged in a two-stage process contrary to Muldrock. If there was any doubt, the application of what was said by Simpson J (Basten JA and Adamson J agreeing) in Davis v R [2015] NSWCCA 90 at [33] makes the matter clear. Her Honour said: It is not lightly to be concluded that a sentencing judge during that period departed from the principles stated in Way. That is particularly so where the conviction is after trial (because Way held that standard non-parole periods did not apply to conviction following pleas of guilty, but stood as "a reference point, or benchmark, or sounding board, or guidepost" (at [122]). Even if the language of Way is not reproduced in the Remarks on Sentence, thus clearly identifying "Muldrock error" (probably more correctly called "Way error"), the strong likelihood is that the Way approach governed the sentencing. If that were not so, it would have to be concluded that the sentencing judge failed to apply the law as it was then understood and widely known. To contend otherwise, in respect of a sentence imposed for an offence to which a standard non-parole period applied between 2006 (Way) and 2011 (Muldrock) is to contend that the sentencing process miscarried and the sentencing judge failed to sentence in accordance with then established principle. As I have said above, such a conclusion is not to be lightly drawn.

Re-sentence

Counsel for the Appellant read the Appellant's affidavit sworn 23 September 2016 and that of his solicitor Steven Eccleshall sworn 7 October 2016 for consideration on the re-sentence exercise.
That evidence discloses that since the time of the first appeal the Appellant was classified as a C1 minimum security classification enabling him to be moved from Lithgow Correctional Centre to Outer Metropolitan Multipurpose Correctional Centre within the Sydney metropolitan area. In August 2015 the Appellant's classification was lowered to C2 enabling him to move to the Honour House outside the main gaol to live. The Appellant acknowledges that since 2010 he has received some minor punishments for breaking gaol rules but for the purposes of the re-sentencing exercise these breaches are insignificant.
The Appellant applied for a sex offender program in August 2010. He underwent an assessment for that program in 2013 and in February 2016 he was told that he had been found suitable for the CUBIT program and that he had been put on a waiting list. The Appellant identified the programs and certificates that he has completed numbering nine in all and he said that he had commenced a new course in warehousing operations in February this year.
The Appellant says that he continues to suffer anxiety for which he takes medication but he does not have any regular access to counselling relating to his childhood trauma.
The Appellant draws attention to the danger of adopting the assessments of objective seriousness by the Sentencing Judge and the previous Court of Criminal Appeal because the assessment was made pre-Muldrock. As this Court said in YY v R [2016] NSWCCA 124 at [51], it is not possible to extract from those expressions of opinion the extent to which they were influenced by an erroneous consideration of subjective factors.
The Appellant points by way of guideposts or yardsticks to the JIRS sentencing statistics and the Public Defenders' tables of sentences for offences contrary to ss 61J and 86 of the Crimes Act 1900 (NSW). He submits further that a finding of special circumstances is appropriate given that he will require an extended period of supervision on parole and will then be able to access psychological and psychiatric assistance necessary to address his PTSD and behaviour issues in the community.
The Crown submitted that the sentences imposed were not manifestly excessive and that after the Court exercises its independent sentencing discretion would not arrive at a sentence less than the sentences imposed on the Appellant.
The Crown pointed to the following matters relevant to the assessment of the objective seriousness of the offending as follows: The offences are serious offences; The nature of the sexual penetration, noting that the authorities show that penile-vaginal penetration of a child is a more serious form of offence; The appellant was in a position of authority in relation to count 1 because of his position as manager of her place of employment; The victim was in a vulnerable position because she was a young person being driven home by her manager who was her elder by years; Substantial emotional harm was inflicted on the victim as is apparent from her Victim's Impact Statement; The offending in respect of Count 2 was more calculated than in respect of Count 1.
The Crown submitted that limited weight should be given to the Appellant's background and PTSD partly because, as the Sentencing Judge found, he knew what he was doing was wrong and, as Johnson J had said in this Court in the first appeal, the triggering incidents for the PTSD occurred as long ago as 1988 whereas the Appellant had lived, been educated and worked in Australia since 1993 in circumstances where he had progressed in his employment to a managerial position.
The Crown submitted that limited weight should be given to the Appellant's remorse because it was very late in coming after he had denied committing the offences throughout the trial and even when assessed for a Pre-sentence Report.
As to rehabilitation, the Crown submitted that the Appellant has not completed any programs directed to his offending sexual behaviour and has merely been found suitable at this stage for the CUBIT program. The Crown pointed to the assessment of Therese Britton, a clinical psychologist, having assessed him as being within the high end of the moderate risk category for re-offending.

Is a lesser sentence warranted?

No error was asserted in relation to the facts nor the subjective matters found by the Sentencing Judge. Certainly, the subjective matters affecting the Appellant have been brought up to date as set out above. Accordingly, the question of the appropriate sentences for the offences may be based in the first instance on those facts and subjective matters: Hitchcock v R [2016] NSWCCA 226 at [29]. However, since the error involved the sentencing discretion and not merely an arithmetical or date error the sentencing discretion must be re-exercised: Lehn v R [2016] NSWCCA 255 at [72].
Since the sentence for count 3 has now expired it is not appropriate to reconsider that sentence: YY v R at [65]. The Appellant submitted that its continuing relevance was to the approach that ought to be taken to concurrency and accumulation of counts 1 and 2. That matter will be dealt with when these matters are being considered.
In my opinion, the objective seriousness of the first offence was just below the mid-range and the objective seriousness of the second offence was within the mid-range, particularly because it involved planning. Both offences involved aggravating features. The victim was vulnerable in the circumstances in which she found herself, the Appellant abused his authority and position of trust in relation to the victim, substantial emotional harm was inflicted on the victim, the nature of the sexual penetration was penile vaginal penetration and, as noted, in relation to count 2 involved a degree of planning. Given that, on both occasions, the victim strongly resisted, the offences must have involved actual or threatened use of violence.
The Appellant's criminal history entitled him to no leniency. His offending included malicious wounding and assault occasioning actual bodily harm both in company as well as common assault.
His remorse was very late in being expressed, only at the sentencing hearing, and after the victim was put through the indignity of the trial where her credibility was challenged.
The Appellant has demonstrated advances towards his rehabilitation. His reclassification to C2 and the approval for him to move to the Honour House outside the main gaol are matters which should be taken into account in his favour. He has completed a number of courses both vocational and those dealing with management of anger and emotions. He has also been found suitable for the CUBIT program although, because of the length of his sentence, he has not yet entered that program. Whilst that is no fault of the Appellant it means that the Court cannot conclude at this time that there is no further prospect of re-offending and that he will be successfully rehabilitated. His acknowledgment of his guilt and wrongdoing is, nevertheless, a positive step along the way and would beneficially affect the assessments made of him for the risk of re-offending both under the Static 99 and the dynamic risk assessment.
Although the Appellant's background in Afghanistan and Pakistan exposed him to early childhood traumas which the psychologist Mr Watson-Monroe said gave rise to a raft of symptoms suggestive of a Post Traumatic Stress Disorder, limited weight should be given to those matters since they occurred as long ago as 1988 and the Appellant had lived, been educated and worked in Australia since 1993 in circumstances where he had progressed in his employment to a managerial position with McDonald's.
It may be accepted the Mr Watson-Munro was of the opinion that his cognitive abilities were at a fairly low level and that he had problems with impulse control. The Appellant claimed to be under the influence of ice at the time of the offending (at least in respect to Count 1) but the evidence was somewhat inconsistent with a lack of pre-meditation. He said it made him want to have sex. He also said that, after he finished work on the first occasion he went to the car to smoke it before he drove the victim in his car. If that was true it tends to show that Count 1 was also pre-meditated.
Both general and specific deterrence are of significance for this type of offending, particularly specific deterrence because of the second offence involving planning. There is nothing in the expert material about the Appellant's psychological issues that render him an inappropriate vehicle for both specific and general deterrence.
The Appellant submitted that delay was a significant factor because he had been incarcerated since 13 April 2008 accompanied by the uncertainty surrounding the various appeals and applications that he has made which have led him to the present appeal. Reliance was placed on what was said by Macfarlan JA (with the agreement of Hall and Bellew JJ) in Des Rosiers v R [2016] NSWCCA 196 at [27]. However, that case is distinguishable for the reasons given by Harrison J (with R A Hulme and Schmidt JJ agreeing) in YY at [60] where his Honour said: Nor am I attracted to the proposition that delays in sentencing the appellant according to law inform consideration of a reduction of his sentence. Anxiety about the outcome of his several appeals whilst he remained incarcerated would in my view only sound in his favour if the ultimate outcome of the resentencing process resulted in him having been imprisoned for a total period that exceeded what was determined to be the proper sentence. In the events that have occurred here, it is not my opinion that the appellant has demonstrated that the delays in his case have produced an injustice of this kind.
The position in Des Rosiers was different because the sentences proposed on appeal in that case meant that the appellant there had probably been incarcerated for a longer period than was warranted.
Neither the statistics nor the Public Defender's table of cases seem to me to assist the Appellant in his submission that a lesser sentence is warranted. I note first what Price J (Tobias JA and James J agreeing) said in R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1 at [61]: More than the usual cautions should be borne in mind in having regard to the statistics for offences contrary to s 61I of the Crimes Act because of the wide range of conduct embraced in the definition of "sexual intercourse". In this area careful attention is to be paid to the different facts of each offence.
In any event, nothing in the statistics nor in the comparative cases put forward suggests that the sentences imposed for Counts 1 and 2 by the Sentencing Judge were outside any range that those statistics or cases may indicate. In saying this I do not overlook what this Court has said many times about that approach of comparing a sentence for an offence with what such statistics may indicate.
The evidence appears to disclose that the Appellant has had limited treatment and assistance for his underlying mental health issues whilst in custody. That factor, together with the position that he has not yet entered or completed the CUBIT program, seem to me to justify a finding of special circumstances to some small extent so that the parole period which was reduced on the previous appeal to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be extended to facilitate his rehabilitation and adjustment into the community. Although the Crown at the hearing of the appeal submitted that there was no basis for a finding of special circumstances the Crown prosecutor at the sentence hearing accepted that those matters might have justified such a finding.
I consider that the accumulation provided for by the Sentencing Judge between counts 1 and 2 was quite inadequate given the separate nature of the offending. The Court is, however, constrained by the overall sentence in that regard. The result will be that each sentence will be shorter but the accumulation greater to reflect better that the Appellant is being punished for two quite separate offences. Since the length of the sentence for Count 3 was, and will continue to be, no longer than the sentence for Count 2 (the offence with which it is connected) it should only be given limited weight in addressing the issue of appropriate accumulation.
I consider that as far as the overall sentence is concerned, no lesser sentence is warranted for what was serious offending. However, there should be a slight adjustment to the overall non-parole period to adjust the statutory ratio for special circumstances.

Conclusion

Accordingly, I propose the following orders. 1. Appeal upheld. 2. Quash the sentence for Count 1 imposed in the District Court on 18 December 2008. 3. Quash the sentence for Count 2 imposed by the Court of Criminal Appeal on 11 June 2010. (4) In lieu, sentence the Appellant as follows: (a) On Count 1 a non-parole period of seven years commencing 13 April 2008 and expiring 12 April 2015 with an additional term of four years six months expiring 12 October 2019; (b) On Count 2 a non-parole period of eight years commencing 13 April 2010 and expiring 12 April 2018 with an additional term of four years six months expiring 12 October 2022. (c) The earliest date on which the Appellant will eligible for parole will be 12 April 2018. (5) Dismiss the appeal as it concerns Count 3.

Amendments 09 December 2016 - Title sheet - File number for proceedings in District Court amended. 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. Decision last updated: 09 December 2016

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