Nausad HUSSAIN v R, Faeem ALI v R

Nausad HUSSAIN v R, Faeem ALI v R - [2010] NSWCCA 184 - NSWCCA 2010 case summary — Zoe

[16]

For an offence of taking his wife Fareena Hussain without her consent with the intention of obtaining an advantage, namely psychological gratification, a sentence of imprisonment of 2 years 2 months consisting of a non-parole period of 10 months and a balance of the term of 1 year 4 months, commencing on 15 June 2010. 4 Accordingly, the overall sentence imposed on Hussain was imprisonment for 2 years 8 months, with fixed terms and non-parole periods totalling 1 year 4 months. 5 For Faeem Ali's only offence, which was an offence of aggravated breaking and entering a dwelling house knowing that there were persons in the dwelling house and committing a serious indictable offence therein, namely intimidation, Faeem Ali was sentenced to a term of imprisonment of 20 months, consisting of a non-parole period of ten months and a balance of the term of 10 months, commencing on 15 December 2009. 6 The sentencing judge made the first three sentences imposed on Hussain and the only sentence imposed on Ali commence from 15 December 2009, and not the date of sentencing, to allow for a discrete period of two days of pre-sentence custody. 7 Assault is an offence under s 61 of the Crimes Act for which the maximum penalty is imprisonment for two years. Aggravated entering of a dwelling house with intent to commit a serious indictable offence therein is an offence under s 111(2) of the Crimes Act for which the maximum penalty is imprisonment for 14 years. Taking a person without that person's consent with the intention of obtaining an advantage is an offence under s 86(1) of the Crimes Act for which the maximum penalty is imprisonment for 14 years. Aggravated breaking and entering a dwelling house and committing a serious indictable offence therein is an offence under s 112(2) of the Crimes Act for which the maximum penalty is imprisonment for 20 years and for which a standard non-parole period of 5 years has been set. No standard non-parole period has been set for any of the other offences.

[17]

The facts of the offences 8 In his remarks on sentence the sentencing judge summarised the agreed facts in a way which was not the subject of any criticism on the hearing of the applications and the following statement of the facts is based on his Honour's summary. 9 Hussain and Fareena were married in 2002. At the time of the offences they had four children. Ali is Fareena's brother. He is married to Shamika Ali. 10 Imran Ali, the victim of one of the offences of assault, is a cousin of Fareena Hussain and Faeem Ali. Imran Ali has a sister named Jazbin Shabbir, who has three children. 11 For several months up to September 2008 Fareena Hussain was in a sexual relationship with her cousin, Imran Ali. This led to arguments between Hussain and his wife Fareena. 12 On 20 September 2008 Hussain and Fareena were at their unit. Hussain had arranged for Fareena's mother and her brother Faeem Ali to be present. Hussain and Fareena had an argument about their marriage. Fareena made clear her intention to leave the marriage. Hussain said, "No. You can't leave". During the argument and in the presence of the children of the marriage Hussain slapped Fareena on the side of her face with his open hand. This constituted the offence of assaulting Fareena. 13 Faeem Ali and Shamika Ali took Hussain and Fareena's children to their house. Fareena's mother remained in the unit. Hussain took a large knife from a drawer in the kitchen and threatened to harm himself with the knife. Fareena's mother spoke to Hussain and took the knife from him. 14 On the following day, 21 September 2008 Fareena left the unit, telling Hussain that she was going shopping. She met Imran Ali and they travelled together to the home of Imran Ali's sister Jazbin Shabbir at Casula. 15 The applicants Hussain and Ali and Ali's wife Shamika Ali travelled in two vehicles to Jazbin Shabbir's house at Casula. When they arrived at the house the applicants banged on the front door, which was closed. The occupants of the house did not respond. A lounge room window was open but there was a fly screen attached to the window. The applicant Ali ripped the mesh from the fly screen and climbed through the window into the lounge room. This action and the subsequent intimidation of Fareena constituted the offence committed by Ali. 16 The applicant Hussain walked to the vehicle in which he had travelled to the house and obtained from inside the vehicle a stick about 1.3 metres in length and about 5 centimetres in width. Hussain then walked to the house and entered the house through the lounge room window. His conduct in entering the house and the subsequent intimidation of his wife Fareena gave rise to the offence of entering a dwelling house with intent to commit a serious indictable offence. 17 Inside the house Hussain struck Imran Ali on the torso with the stick. This constituted the offence of assaulting Imran Ali. Ali spoke abusively to his sister Fareena and to Imran Ali. 18 Hussain grabbed his wife Fareena and started dragging her towards the door. She tried to resist saying, "I don't want to go with you". Hussain overpowered her and pulled her to the vehicle in which he had travelled to the house. Hussain pushed Fareena into a back seat in the vehicle and himself got into the driver's seat. He put the stick on the front passenger's seat. 19 Hussain drove off. He repeatedly told Fareena that she had ruined the family and that she should think about their children. Ali and his wife Shamika were following in the other vehicle. At one stage, when the vehicle was stopped, Hussain picked up a knife and said, "I'll show you what I can do. I am going to die tonight" and he then cut his wrists (apparently not seriously). 20 Fareena attempted to open the back door of the vehicle in order to escape but Hussain told her "Don't do anything stupid. Get back in the car". Fareena complied with Hussain's direction out of fear that he might injure her with the knife. Fareena said that she was going to telephone the police. Hussain said, "Don't you dare call the police". 21 Hussain stopped the vehicle at tollgates. Fareena opened the door of the vehicle, got out and ran. Hussain chased her and tried to drag her back into the vehicle. This part of the incident was recorded on close circuit television. 22 Fareena screamed for help and yelled that she did not want to get back into the vehicle. A tollbooth operator and a motorist who got out of his car went to the assistance of Fareena. Fareena succeeded in breaking free from Hussain and ran to the tollbooth. 23 Hussain returned to his home, where he collected his personal belongings. He told Ali and his wife Shamika that he, Hussain, was going to New Zealand and asked them to take him to the airport, which they agreed to do. On the way to the airport the vehicle was stopped at the request of Hussain and Hussain threw the stick which he had used to assault Imran Ali into the Georges River, from which it was subsequently recovered by police divers. 24 At the airport Hussain purchased a one-way ticket to New Zealand. Police telephoned Hussain but he refused to tell them where he was. Police formed the view that Hussain was at the airport and contacted the relevant authorities. Police then telephoned Hussain and informed him that they knew that he was at the airport and that, if he boarded a flight, he would be brought back to Australia. 25 Hussain did not fly to New Zealand. He presented himself to a police station, where he was arrested. He was informed that he was being arrested for the abduction of Fareena and was cautioned. He then said, "But she is my wife". 26 Ali also presented himself at a police station, where he was arrested and cautioned. He then said, "Listen she is my sister and she has been cheating on her husband. This is shameful to my family. She should be at home with her kids and husband". 27 Both applicants were interviewed by police. Hussain made full admissions. Ali admitted the offence to which he subsequently pleaded guilty but sought to minimise his role.

[20]

Further consideration of the Remarks on Sentence 38 With regard to Hussain, the sentencing judge found that the offences he had committed were objectively serious, particularly the offences of aggravated entering of a dwelling house and of taking a person without consent with intent to obtain an advantage. His Honour found that the offence of taking without consent for an advantage was the most serious of the offences. 39 The sentencing judge accepted that Hussain had lost self-control and had acted impulsively. However, he was satisfied that the objective seriousness of Hussain's offences required the imposition of nothing less than full time custodial sentences. Alternatives to full time custody would not be capable of reflecting the objective seriousness of the offences. 40 With regard to Ali the sentencing judge described his offence as objectively serious and commented that for such an offence general deterrence is of particular importance. His honour accepted as a mitigating factor that Ali had lost self-control after seeing his sister with Imran Ali and had acted impulsively. His Honour found that it was an aggravating factor that the offence had been committed in the presence of three young children. 41 The sentencing judge noted the standard non-parole period of 5 years for the offence and that the standard non-parole period remained a reference point, even though there had been a plea of guilty. His Honour found that the offence fell towards the lower end of the range of objective seriousness for offences of its type. His Honour stated that he was not imposing the standard non-parole period, because of his finding about the level of objective seriousness of the offence, the plea of guilty, the applicant's subjective circumstances and a finding of special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. 42 In his remarks on sentence his Honour said:- "In all the circumstances I am satisfied that nothing less than a full time custodial sentence must be imposed. Sentencing alternatives to full time imprisonment are in my view not capable of reflecting the objective seriousness of the offence." 43 As to both applicants, the sentencing judge allowed a discount of 15 per cent for the utilitarian value of the pleas of guilty, which had been entered at the time of arraignment in the District Court. His Honour found special circumstances within s 44(2) in the case of both applicants.

[23]

This ground of appeal was based, not on anything said by the sentencing judge in his remarks on sentence, but on something said by the sentencing judge in the course of the sentence hearing. 47 In the sentence hearing the prosecutor submitted that the two more serious offences committed by Hussain fell towards the mid range for offences of their kind. The sentencing judge then referred to Fareena's infidelity with her cousin and described it as a "powerfully mitigating factor", - His Honour added "I think it makes a difference between something that would otherwise have fallen in the mid range, an offence that would, as a result of the mitigation, be very much probably mid way between the middle range and the low end middle range". 48 What his Honour said, like many impromptu remarks made in the course of an exchange during a hearing between the bench and legal representatives, is not precisely expressed but indicates, in my opinion, that, contrary to the submission which had been made by the prosecutor and contrary to the present ground of appeal, his Honour was then observing that, because of the powerfully mitigating factor of Fareena's infidelity, the objective seriousness of the more serious offences committed by Hussain was below the middle of the range. 49 More importantly, as Wood CJ at CL observed in R v A [2004] NSWCCA 292 at [12]:- "Exchanges between the bench and counsel in the course of the proceedings do not form part of the reasons, and it would not be safe to assume that some observation passed by a judge, during submissions, necessarily represents a considered or final view …." 50 In his remarks on sentence the sentencing judge did not make any express finding about the level of objective seriousness of any of Hussain's offences, except to say that the offences were "objectively serious". This finding was clearly open to his Honour. As there was no standard non-parole period for any of the offences, his Honour was not required by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, as interpreted in decisions of this Court, to make express findings about the level of objective seriousness of the offences, although his Honour was required by the general law of sentencing to assess the objective seriousness of the offences. It is apparent from his Honour's remarks on sentence that his Honour discharged this requirement. 51 I would reject this ground of appeal.

[24]

The sentencing judge erred by failing to properly consider alternatives to full time custody. 52 In support of this ground of appeal counsel referred to R v Zamagias [2002] NSWCCA 17, in which Howie J at paragraphs [22] to [30] of his judgment said that, in determining whether a sentence of imprisonment should be imposed upon an offender, a court must take the preliminary step required by s 5 of the Crimes (Sentencing Procedure) Act of determining whether, having considered all possible alternatives, it is satisfied that no penalty other than imprisonment is appropriate and, if it determines that no penalty other than imprisonment is appropriate, is required to take two further steps, firstly of determining what the term of the sentence of imprisonment should be and secondly of determining how the term of the sentence should be served and in particular whether there is any alternative to it being served by full time imprisonment. It was submitted on behalf of the applicant that the sentencing judge had erred "by finding that a suspended sentence was not capable of reflecting the objective seriousness of the offences". 53 I do not consider that this ground of appeal should be upheld. Although a sentencing judge is required to take the preliminary step and the two subsequent steps before imposing a sentence of imprisonment to be served by full time custody, it is unnecessary for a sentencing court to expressly state that it has taken these steps (Zamagias at [30]). 54 In the present case the sentencing judge said in his remarks on sentence that he was satisfied that the objective seriousness of the offences required the imposition of nothing less than full time custodial sentences and that alternatives to full time custody would not be capable of reflecting the objective seriousness of the offences. 55 I am satisfied that it can be inferred from what his Honour said that his Honour had carried out the preliminary step and the two other steps required by Zamagias and that in carrying out the second of the two further steps his Honour gave consideration to, and rejected, the alternative of imposing sentences which would be suspended.

[25]

The sentencing judge failed to give any weight to the victim's expressions of forgiveness. 56 By the time the applicant was sentenced Fareena had returned to live with Hussain. In the proceedings on sentence Fareena gave evidence that she and Hussain had been reconciled and were now living happily together. In her evidence she suggested that the offences had been committed by Hussain "in the heat of the moment". 57 In his remarks on sentence the sentencing judge adverted to Fareena's forgiveness. His Honour said, "The offender's wife has confirmed (Hussain's evidence) that their lives are now back on track and that everything was good in their relationship". 58 It was submitted on behalf of the applicant that the sentencing judge had given no weight to Fareena's forgiveness. 59 I do not consider that this ground of appeal should be upheld. The sentencing judge was not required to give, and indeed could not properly give, this consideration any weight. As was said by Howie J in R v Palu (2002) 134 A Crim R 174 at [37]:- 'The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (unreported, Court of Criminal Appeal, NSW, No 60738 of 1993, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: R v Henderson (unreported, Court of Criminal Appeal, NSW, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim."

[26]

The sentencing judge failed to give sufficient weight to mitigating factors. 60 In support of this ground counsel referred to the subjective circumstances of Hussain and to the various mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act which were present, such as the absence of previous criminal convictions, that the applicant was a person of good character, that he was unlikely to re-offend, that he had shown remorse and that he had pleaded guilty. 61 However, all of these factors were referred to by the sentencing judge in his remarks on sentence and it can be inferred that his Honour took them into account. 62 There is a fundamental difficulty with a ground of appeal of the present kind. As stated by Johnson J in Majid v R [2010] NSWCCA 121 at [40]:- "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]." 63 In the applicant's written submissions it was submitted that, because Hussain was the sole income earner for his family, the hardship to his wife and children resulting from his being imprisoned would be truly exceptional, within the principle stated by Gleeson CJ in R v Edwards (1996) 90 A Crim R 510 at 515, that hardship to third parties, if an offender was imprisoned, must be exceptional to warrant mitigation of sentence. 64 However, in oral submissions counsel abandoned this submission and merely submitted that Hussain's applicant's family circumstances should have been taken into account as part of the general subjective circumstances, in accordance with R v Girard [2004] NSWCCA 170. In his remarks on sentence the sentencing judge referred to the applicant's family circumstances and it can be inferred that he took those circumstanced into account as part of Hussain's subjective circumstances. 65 I would reject this ground of appeal.

[27]

The sentences were manifestly excessive. 66 The matters relied on in support of this ground of appeal in the applicant's written submissions were the same matters as were relied on in support of grounds 1 to 4, all of which I have rejected. 67 In oral submissions it was put, particularly in regard to the offence of taking for advantage, that Hussain's offence did not have some of the features, which, it was submitted, are commonly found in offences of that sort, such as attempts by the offender to disguise himself or otherwise to avoid detection, physical mistreatment of the victim falling short of inflicting actual bodily harm and detention of the victim for a long period of time. 68 It was also submitted on behalf of Hussain that his more serious offences were offences of a kind ordinarily committed by persons unknown to the victims. I would reject this submission. Offences of intimidation or including intimidation as an element and offences of taking for advantage are frequently committed by offenders who are well known to the victims and, indeed, are frequently committed in a domestic context. The objective criminality of the offences was not mitigated because the offender was known to the victims and a close relative of the victims. 69 It was submitted on behalf of Hussain that the sentencing judge had not taken into account the mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, that the applicant was "provoked by the victim". However, even though the sentencing judge did not in terms describe Hussain as having been "provoked", his Honour stated that he accepted and took into account in Hussain's favour as a mitigating factor, that Hussain had lost control when he saw his wife together with Imran and had then acted impulsively. 70 It was submitted that the sentencing judge should not have accumulated the sentences for the two more serious offences to the extent that he did. However, as was conceded, it was clearly appropriate for the sentencing judge to accumulate to some extent the sentence for the offence of entering a dwelling house with intent to intimidate and the sentence for the separate offence of taking a person without her consent to obtain an advantage. The extent of the accumulation set by the sentencing judge was clearly within his Honour's discretion. 71 In my opinion, the sentences set by the sentencing judge were well within his Honour's sentencing discretion. I would dismiss the fifth ground of appeal and, having rejected all of the grounds of appeal, I would, while giving leave to appeal against sentence, dismiss the appeal against sentence.

[30]

The sentence was manifestly excessive. 75 The submissions made in support of this ground were brief. 76 As I have already noted, Ali's only offence was of a kind for which a standard non-parole period has been set, being a standard non-parole period of 5 years. The sentencing judge found that Ali's offence fell towards the lower end of the range of objective seriousness. His Honour departed from the standard non-parole period, because of the low level of objective seriousness, the plea of guilty, Ali's favourable subjective circumstances and the finding of special circumstances. The parole period set by the sentencing judge was less than one-fifth of the standard non-parole period. 77 An argument was put that no heavier sentence should have been imposed on Ali for the offence under s 112(2) of the Crimes Act than was imposed on Hussain for the offence under s 111(2). However, there was only a slight difference between the two sentences and it was open to the sentencing judge to impose a somewhat heavier sentence on Ali because it was he who was responsible for the actual breaking into the dwelling house. 78 I would reject this ground of appeal and, having rejected all Ali's grounds of appeal, I would, while granting leave to appeal, dismiss the appeal against sentence. 79 DAVIES J: I agree with the judgment of James J but wish to add the following. 80 It was submitted on behalf of both Ali and Hussain that, all other things being equal, when an offender is a close relative of the victim that association in most cases and in the present case makes the act of criminality of a lesser nature. I do not agree with that submission. It overlooks the fact that a victim who is a relative, and particularly a wife, may be in a more, rather than a less, vulnerable position with regard to the wrongful acts of the offender. It contains the inference that it is less serious to commit a crime, whether a crime involving property or a crime of violence against a relative compared with a stranger. 81 In the present case it wrongly provides support for the attitude Hussain expressed to the Police at the time of his arrest for the abduction of his wife that he was entitled to do it "because she is my wife", and the attitude of Ali when he was arrested that "she is my sister and she has been cheating on her husband. This is shameful to my family." 82 Those views and attitudes have no place in Australian society. A submission that offences committed against relatives are of a lesser criminality should be firmly rejected.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Cases Cited (8)

Cited By (1)