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Legislation Cited: Crimes Act 1900 (ACT), ss 23, 34, 54(1)

Cases Cited: Dalton v The Queen [2015] ACTCA 48 R v Naqvi [2016] ACTSC 345 R v Williams [2016] ACTSC 389 Singh v The Queen [2015] ACTCA 65

Parties: Syed Qasim Naqvi (Appellant) The Queen (Respondent)

Representation: Counsel K Archer (Appellant) M Jones (Respondent)

Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 58 of 2016

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 8 November 2016 Case Title: R v Naqvi Citation: [2016] ACTSC 345 THE COURT:

Introduction

1. The appellant pleaded guilty to four counts of sexual intercourse without consent (Crimes Act 1900 (ACT), s 54(1)). Each count was a rolled-up count covering a number of sexual assaults. He also pleaded to one count of unlawful confinement (Crimes Act, s 34) and one count of recklessly inflicting actual bodily harm (Crimes Act, s 23). Those offences occurred when the appellant confined the complainant for eight days during which he sexually assaulted her, made threats to seriously harm her and forced her to carve his initials into her arm.

2. On 9 November 2016 Burns J sentenced the appellant to 13 years and eight months imprisonment. A non-parole period of eight years and two months was set. The sentence was backdated to commence on 8 April 2015, the date of the appellant’s arrest: see R v Naqvi [2016] ACTSC 345.

3. The appellant’s ground of appeal asserts that the sentences were manifestly excessive and that the overall sentence was manifestly excessive. In his written and oral submissions, the appellant identified his specific challenge to the sentence for count 1 on the indictment, the charge of unlawful confinement, as being the reason that the overall sentence was manifestly excessive. There were two distinct aspects to this challenge: the length of that sentence and the degree of cumulation between the sentence on that count and the sentence on count 3.

4. The sentences imposed are summarised in the following table:

Count Sentence Dates Accumulation

Count 1: Unlawful confinement 4 years, 8 8 April 2015 – -months 7 December 2019

Count 3: Sexual intercourse 7 years, 10 8 February 2016 – +4 years without consent months 7 December 2023

Count 4: Sexual intercourse 5 years, 4 8 February 2020 – +1 year, 6 months without consent months 7 June 2025

Count 5: Sexual intercourse 5 years, 4 8 August 2021 – +1 year, 6 months without consent months 7 December 2026

Count 6: Sexual intercourse 5 years, 4 8 February 2023 – +1 year, 6 months without consent months 7 June 2028

Count 2: Recklessly inflict 1 year, 6 8 March 2027 – +6 months actual bodily harm months 7 December 2028

5. The non-parole period represented 60 per cent of the head sentence.

6. The appellant contended that, having regard to the sentences for the other specific charges and because of the relationship between the sentence for count 1 and count 3, the sentence for unlawful confinement was manifestly excessive. Facts

7. The sentencing proceeded on the basis of an agreed statement of facts. In summary the facts were as follows.

8. The appellant met the complainant some time before Christmas 2014. She was from Indonesia, having arrived in Australia in September 2013 with her husband. At the time of meeting the appellant she was estranged from her husband but still in contact with him. She told the appellant that her visa had been cancelled and she was staying in Australia illegally. She moved into the appellant’s home in Torrens on about 26 January 2015. Once there, the appellant told her that she was not to talk to the other tenants at the house and to stop working for her employer. He required her to do all the cooking and cleaning. The complainant became disgruntled with this arrangement. The appellant began threatening her saying he would chop off her head and that he had sharp objects in his car. She became fearful and, in early February 2015, made arrangements for her husband to collect her so that she could leave the offender.

9. The complainant left and moved into a house owned by her employer, Mr Lee. The appellant tracked her down and entered the house looking for her stating: “Where’s my wife?” He started watching the house over the following days.

10. On or about 17 February 2015 the appellant met the complainant outside her work at a McDonald’s Restaurant and physically forced her into his car. This was the commencement of the unlawful confinement, the subject of count 1 on the indictment. After forcing her into his car, the appellant took the complainant’s mobile phone from her. He grabbed at her face, pushed and slapped her. He took her to a police station, instructing her that she was to tell an officer that she was happy with the appellant should her husband or Mr Lee come looking for her. Although not specifically described in the statement of facts, it appears that she did as she was told. There is nothing to indicate what, if anything, the police involved made of this approach by the offender and complainant.

11. The offender made her phone Mr Lee and say that she was happy with the offender. When the complainant’s husband rang the complainant, the offender sent a text message to him threatening police involvement. At the house in Torrens the offender made the complainant get a knife from the kitchen and carve his name into her arm. She carved the letters “SAB” into her arm. This was count 2 on the indictment – recklessly inflicting actual bodily harm.

12. During the eight days from 17 February 2015 until 25 February 2015, the appellant engaged in a number of acts of sexual intercourse without consent involving fellatio, penile/vaginal intercourse and anal intercourse. These acts were the subject of counts 3 to 6 which were charges of sexual intercourse without consent. Each charge was a rolled-up charge which incorporated more than one act. Details of these acts are summarised in his Honour’s reasons at [10]-[20]. It is not necessary to repeat those details here. The sentences in relation to these acts are not challenged.

13. During the course of confining the complainant:

(a) the offender changed the PIN number on the complainant’s phone and kept control of it, only handing it to her when her family members called and then telling her what to say to them;

(b) the offender kept the complainant with him and took her to work with him; (c) when at home the offender made the complainant cook and clean for him and made her say “Yes honey” to demands he made of her;

(d) outside the home the offender made the complainant follow him everywhere, do what he said and pay for things that he purchased, taking control of her money, purse and key cards;

(e) at times the offender slapped the complainant pinched her cheeks and said things to her like “The king remains king”; and

(f) the offender told her that she had to be polite to him and that she had to obey him, saying “If you don’t obey me I will cut off your legs and you will feel the pain every single day.”

14. On the third day of her confinement, the offender took the complainant to work with him and made her stay in the car. The offender and the complainant returned to the Torrens house in the early hours of the next morning. During the course of that day (the fourth day of her confinement), the offender took the complainant for a drive and told her that because she was illegally in Australia it would be easy to kill her. He said that he would cut off her legs, go to Darwin and throw her into the water. He said “Before I do anything I will tell you, if I am going to kill you, I will tell you first.”

15. On or about 25 February 2015, the complainant was cooking and cleaning. The offender grabbed at her and was angry because she was wearing shorts around the house. He grabbed her by the throat and slapped her repeatedly. During that day he told her that he wanted to see lots of blood and talked about getting a sharp knife to write his name “Qasim” on her arm. In the early afternoon the offender had to go back to his workplace, Domino’s Pizza, to speak with his manager. While the offender was inside the shop and the complainant waiting in the car, a woman, Ms Clarke, approached the car where the complainant was and the complainant asked her for help. Ms Clarke rang the police and took the complainant into her office. Burns J commended Ms Clarke for her actions.

16. The complainant was subsequently medically examined on 2 March 2015. The doctor examining her stated that “The overall pattern of injury is that of multiple application of blunt force trauma including sexual organs, vulva and breasts.”

17. In assessing the objective seriousness of the unlawful confinement, his Honour said:

18. I have referred to the facts of these offences in some detail because in assessing the objective seriousness of each offence it is important to acknowledge the depths of your depravity and the degradation you inflicted upon your victim. You did not simply satisfy your sexual desires but you engaged in an intentional and systematic process of sexual degradation of your victim which speaks of a desire beyond the merely sexual, a desire to exercise power over her. Your actions speak of a need to feel powerful by the subjugation and degradation of another human being. 25. In assessing the objective seriousness of the offence of unlawful confinement I take into account the period of time during which the confinement occurred. In this case it was about one week. I also take into account the fact that during that confinement you largely controlled the complainant, forcing her to cook and clean for you, to give you money and to buy you things. You also threatened to inflict serious injury on her. 26. I make it clear that in sentencing you for the offence of unlawful confinement I do not take into account the sexual offences which you committed or those acts which form the basis of the charge of recklessly inflicting actual bodily harm. I would assess the objective seriousness of the offence of unlawful confinement as at the upper end of the middle range of such offences. I would assess the offence of recklessly inflicting actual bodily harm as in the middle range of such offences.

19. His Honour noted the absence of a criminal history. He rejected the claims made by the appellant to the author of the pre-sentence report of a history of trauma and physical and sexual abuse in his past. He referred to a psychiatric report disclosed that the appellant “does not suffer a mental illness or mental impairment”.

20. The appellant had come to Australia on a student visa from Pakistan. His Honour made reference to a letter from the appellant’s brother-in-law which said that the appellant’s father had paid for his visa, accommodation and tuition when he first came to Australia, but that the relationship with his father had deteriorated because of the appellant’s choice of lifestyle.

21. His Honour also took into account the terms of a victim impact statement. He noted the utilitarian value of the plea of guilty even though it was very late. So far as remorse was concerned his Honour found:

22. I give some weight to the opinion expressed by Mr Raza [the appellant’s brother-in-law] that you are ashamed for what you have done but I am also satisfied that you have feigned lack of memory with respect to these offences. By doing so you have demonstrated a lack of genuine remorse for your offending.

23. He identified punishment and deterrence as the principle sentencing considerations saying:

24. While you are still a relatively young man, the predominant sentencing considerations for these offences must be punishment and deterrence. Both general and specific deterrence are relevant in the circumstances of this case. Lengthy sentences of imprisonment are required in order to appropriately punish you for these offences, to deter you from committing such offences in the future and to deter others who may be minded to prey upon the vulnerable in order to satisfy their own warped desires.

25. His Honour made reference to questions of totality as follows:

26. I take into account the requirements of totality in sentencing you for multiple offences. I will allow significant concurrency between the sentences which I impose but inevitably a degree of accumulation is also appropriate.

Consideration

23. The principles to be applied in a sentence appeal asserting that a sentence is manifestly excessive are summarised in the decision in Dalton v The Queen [2015] ACTCA 48 at [18]. It is not necessary to repeat them.

24. The maximum penalty for unlawful confinement was 10 years imprisonment. The maximum penalties for the charges of sexual intercourse without consent was 12 years. The maximum penalty for the charge of recklessly inflicting actual bodily harm was five years.

25. The premise for the appellant’s submissions was that his Honour had cumulated, to the extent of four years, the sentence on count 3 upon the sentence on count 1. This is correct in that the sentence for count 3 ended four years after the end of count 1. However, looked at by reference to the unchallenged sentence for count 3 of seven years and 10 months, the sentence on count 1 was wholly concurrent with that offence except for a period of 10 months at the beginning of the sentence. After count 3, each of the remaining charges of sexual intercourse without consent was cumulated to the extent of 18 months upon the previous charge and the charge of recklessly inflicting actual bodily harm cumulated to the extent of six months.

26. If, however, regard is had to the fact that the sentences on count 4 only commenced some four years and 10 months into the overall sentence, it might be said that the existence of the unlawful confinement sentence pushed back the date at which those other sentences commenced their concurrent operation with the sentence on count 3. They only commenced after the period when the sentence on count 1 was operating concurrently with the sentence on count 3 and, if the sentence on count 1 was shorter, this may have brought forward the date upon which the remainder of the sentences commenced. As a result, the overall length of the unlawful confinement charge could be seen to have had a greater influence upon the overall length of the sentence than merely the 10 month period where it was cumulative upon the sentence on count 3.

27. There was no express challenge to the finding that the offence was in the upper end of the middle range of such offences. However the appellant did assert that it was the other offences on the indictment that “essentially characterised the objective seriousness of [the] unlawful confinement” and that it was “an artificial approach to factually isolate count 1 in the way His Honour did”. The complaint appeared to be that the seriousness of the unlawful confinement arose from the sexual and violent offending that occurred during it which was the subject of separate charges and that, notwithstanding that his Honour had expressly said (at [26]) that in sentencing the offender for the unlawful confinement he was not taking account of the separately charged conduct, the sentence was manifestly excessive if that conduct was, in fact, excluded from consideration.

28. The appellant did not challenge his Honour’s characterisation of the objective seriousness of the offending conduct. Some of the features that may be used to assess the seriousness of an offence are summarised in R v Williams [2016] ACTSC 389 at [53]. In the present case the features of the unlawful confinement relevant to the imposition of the sentence were as follows:

(a) the confinement lasted for a considerable period of eight days;

(b) there was a degree of premeditation having regard to the efforts of the offender to find the complainant after she left him on the first occasion;

(c) the purpose of the confinement was to dominate and control the complainant and to pursue sexual gratification at her expense;

(d) the offender exerted control over the victim by forcing him to cook and clean for him, to buy him items, and to withdraw money from her account or her husband’s account;

(e) the offender took steps to isolate her from outside contact taking and controlling access to her phone;

(f) the offender forced her to stay with him or under his control at all time;

(g) the offender made threats to inflict serious injury or death upon the victim, threats which, in the light of the infliction of actual bodily harm and the very serious sexual assaults perpetrated upon her, would have to have been taken seriously.

29. The appellant did not attempt to demonstrate that the sentence on count 1 was excessive by reference to sentences imposed by other decided cases. Many such cases are referred to in Singh v The Queen [2015] ACTCA 65. The remarks made by the sentencing judge in the present case about the relationship between the sentence for unlawful confinement and the sentences for the offences for other offences committed during the course of that confinement reflect the statements in Singh at [113], a decision which his Honour participated in.

30. Taking these factors into account and in the light of the various subjective circumstances of the appellant, it cannot be said that a sentence of four years and eight months considered by itself was a manifestly excessive one. That is even clearer when the sentence is considered in its context having regard to the large degree of concurrency with count 1. Further, having regard to the very serious course of conduct and the sentences imposed upon the offender taken as a whole, it cannot be said that the overall sentence imposed was manifestly excessive.

Orders

31. The orders of the Court are:

32. Appeal dismissed.

33. The sentences are confirmed.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 10 November 2017