Naveed v R

Court of Criminal Appeal (NSW)|2019-05-01|Before: Hoeben CJ, Hulme J, Davies J

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
R A HULME J: I agree with Davies J.
DAVIES J: The applicant was charged with one count of sexual intercourse with EM without her consent that she was not consenting contrary to s 61I of the Crimes Act 1900 (NSW). He pleaded not guilty to that offence. After a trial before Judge Payne and a jury, the jury returned a verdict of guilty.
On 13 June 2017 the applicant was sentenced by Judge Payne to imprisonment for nine years commencing 12 February 2017 and expiring 11 February 2026 with a non-parole period of six years and four months expiring 11 June 2023. The maximum penalty for the offence is imprisonment for 14 years. There is a standard non-parole period of seven years.
The applicant now seeks leave to appeal against the sentence imposed on the following grounds:
The learned sentencing judge erred in her interpretation of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 dealing with the offender's remorse and its application to the evidence;
The learned sentencing judge erred in the manner in which she dealt with evidence of remorse;
The sentence imposed is manifestly excessive.

Remarks on Sentence

The matter of consent was apparently left to the jury on the basis either that the applicant knew that the complainant was not consenting or that he was reckless as to her consent. However, at the sentence hearing the Crown submitted that her Honour ought to find that the applicant must have known that the complainant was not consenting. In that regard, the Crown relied on the complainant's evidence that she said "no" and tried to push him off her.
The sentencing judge noted in her Remarks that defence counsel did not make any contrary oral submission, nor did he address that matter by contradicting the Crown's submission in his written submissions which were forwarded after he heard the Crown's address. Her Honour found beyond reasonable doubt that the applicant knew the complainant was not consenting.
As for objective seriousness, her Honour noted the defence's submission that the offending fell within the lower to mid-range of objective seriousness. The crown, on the other hand, submitted that the objective seriousness fell at least in the middle of the range, if not slightly above. Her Honour found that the objective seriousness was in the upper or top band of the middle range.
Her Honour noted that the applicant was then aged 41. He was married with three children and he had no criminal record either in Pakistan, where he was born, or in Australia.
Her Honour dealt with the question of remorse, about which more will be said later in this judgment. In short, her Honour did not find that s 21A(3)(i) of Crimes (Sentencing Procedure) Act 1999 (NSW) had been satisfied.
Her Honour considered the applicant's prospects of rehabilitation to be reasonable, but she could not make a finding one way or the other on whether he was likely to reoffend.
Her Honour noted the hardship to the applicant's wife but found that it did not amount to exceptional hardship.
Her Honour varied the statutory ratio to reduce the proportion of the non-parole period to the whole sentence to 70.33%.

Extension of time

As noted, the applicant was sentenced on 13 June 2017. A Notice of Intention to Apply for Leave to Appeal was lodged and extensions were granted until 30 June 2018. Thereafter further extensions were refused and a Notice of Application for Extension of Time for Notice of Appeal was filed on 15 January 2019. While the explanation provided in the Notice of Application for Extension of Time and an accompanying affidavit of Sherleen Chand dated 11 January 2019 provide explanations for the delay, the delay is somewhat unsatisfactory. Nevertheless, the Crown did not wish to be heard in opposition to the extension of time. I consider that, in the circumstances, an extension of time should be granted.

Ground 1: The learned sentencing judge erred in her interpretation of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 dealing with the offender's remorse and its application to the evidence.

Ground 2: The learned sentencing judge erred in the manner in which she dealt with evidence of remorse.

The sentence proceedings were conducted on 5 May 2017. At that time there were a number of matters outstanding. Relevantly for these grounds, counsel for the applicant said this when asked about the further evidence sought to be relied on: It may be some evidence from Mr Naveed, I don't know whether it's going to be in affidavit form or letter form, … including perhaps something from Silverwater Gaol with respect to the conditions of his custody. … Whilst he was at Silverwater he was assaulted on two occasions.
A little later in the sentence proceedings the following exchange occurred between the sentencing judge and counsel for the applicant concerning further evidence: HER HONOUR: What's the other aspect? KATSINAS: There's a possibility of an affidavit or a letter emanating from Mr Naveed. HER HONOUR: About the assaults? KATSINAS: About a number of matters your Honour. TREVALLION: Again, they may not be objected to. KATSINAS: Doing the best that I can at this point in time your Honour I suspect that what would come from Mr Naveed in fact is a letter as opposed to an affidavit so I don't think there'll be a need to cross-examine Mr Naveed in relation to that matter which may assist us as far as the next date is concerned. … TREVALLION: What we would suggest your Honour is that there be a date set for the service of any material by the defence by 19 May, serving additional material on which they wish to rely, we can respond to the Court by 23 May, that is the Crown can respond to the Court by 23 May whether or not any of that material will be objected to and at this stage we can retain the date of 13 June in the hope that your Honour will be able to proceed to the imposition of sentence on that date. HER HONOUR: Yes well that would be suitable. TREVALLION: If the evidence is not objected to there could be a short further written submission by my learned friend on what he intends to rely on that evidence for and we could respond to it, so perhaps by the 19th-- HER HONOUR: Yes well that should come with the evidence.
On 5 May 2017 the sentencing judge had four exhibits from the defence being the outline of written submissions, a report from Dr Olav Neilssen of 4 May 2017, an affidavit from the applicant's wife and two character references. At the conclusion of the hearing on 5 May directions were made in accordance with what is set out above, and the matter was adjourned to 13 June 2017 "part heard for sentence".
It then appears that at some time before 13 June the applicant's solicitors forwarded 3 documents to the sentencing judge. They were a letter from the applicant to the judge, Justice Health notes and supplementary submissions. The Crown subsequently forwarded submissions in response to the sentencing judge. All of the forwarded documents were said to have been marked as exhibits on 13 June although it seems likely that was done in chambers by the judge prior to her delivering her Remarks on Sentence.
The significance of this is that until the letter from the applicant was forwarded to the judge, there was no evidence of any sort dealing with remorse. Further, the applicant's submissions had made no mention of remorse. The letter relevantly said: I sincerely apologise with [sic] your honor [sic] and the court and now I realised that I made a wrong decision on 18th October 2015. I accept the jury's verdict and also accept finding of guilt. My lawyers have read to me [the complainant's] statement and I am extremely sorry to hear about what has been happening to her in her life. I take all the responsibility for that and I hope everything will be alright in her life in the near future. I also acknowledge and take responsibility of any injury to [the complainant]. I am so sorry [complainant].
In dealing with the question of remorse, the sentencing judge set out s 21A(3)(i) of the Sentencing Procedure Act. Her Honour noted defence counsel's submission that her Honour would be satisfied on the balance of probabilities of the mitigating feature of remorse.
Her Honour then set out what was said in the supplementary submissions filed by the applicant's counsel as follows: 2. In this regard, reliance is placed upon the letter prepared by Mr Naveed outlining acceptance of responsibility and an acknowledgement of injury, loss or damage caused by his actions. 3. It is appreciated that Mr Naveed has not given any evidence with respect to the matters raised in the letter but nevertheless it is submitted that some weight be placed upon the letter as far as demonstrating remorse and contrition is concerned.
The sentencing judge next set out what the Crown said both in its written submissions and in its submissions in reply to the applicant's written submissions. The Crown submitted before the sentencing judge that the applicant had displayed neither contrition nor remorse. The Crown reminded her Honour that in the applicant's ERISP he said that he had engaged in consensual sexual intercourse with the victim, and he put forward a palpably false version of events which included the assertion that the complainant had, against the applicant's wishes, grabbed his hand and placed it on her breast.
In the Crown's submissions in reply, the Crown said this: The letter the offender relies on expresses remorse for his actions and remorse for causing injury to the victim. It is submitted that although the Court is entitled to take this evidence into account as satisfying s 21A(3)(i), absent the offender giving sworn evidence, this remorse should be given reduced weight: Butters v R; TS v R.
Her Honour then said: I do not accept the Court is entitled to take this evidence into account as satisfying s 21A(3)(i) Crimes (Sentencing Procedure) Act. Her Honour quoted from the applicant's letter where he said that he realised that he made a wrong decision, that he accepted the jury's verdict and that he accepted the finding of guilt. Her Honour noted that the applicant said he took responsibility for harm to the victim.
Her Honour then said: There has still been no clear acceptance by him of his guilt, of his acceptance of what the victim said happened to her, what he did and what the jury accepted. I cannot see that this means he accepts responsibility for his offending behaviour, his actions. Because he has not given evidence, he has not been able to be cross-examined as to exactly what he says in his letter means (sic) … I am not satisfied this mitigating feature, even on the balance of probabilities, is made out.
At the hearing of the appeal, the applicant focused on two statements made by the sentencing judge and submitted that two distinct errors were demonstrated. The first was her Honour's statement that she did not accept the Court was entitled to take the evidence into account as satisfying s 21A(3)(i) of the Act. The second alleged error was her Honour's observation that because the applicant had not given evidence he had not been able to be cross-examined as to what his letter meant, and in that way her Honour could not accept that he accepted responsibility for the offending. The applicant submitted that those two statements were contrary to what was said by this Court in Butters Jarod Dean v R [2010] NSWCCA 1 at [16]-[18].

Consideration

Although her Honour's statement that she did not accept that the Court was entitled to take the unsworn evidence in the letter into account as satisfying s 21A(3)(i) of the Act was unfortunate, it is clear from reading her Remarks as a whole that her Honour did in fact consider what was said in the letter and whether the expressions of remorse within the letter were capable of satisfying s 21A(3)(i). Her Honour did not simply make the statement complained of and thereafter ignore the letter. She considered the terms of the letter and the fact that he had not given evidence which enabled him to be cross-examined about what he meant by what he had said.
What her Honour said was entirely consistent with what was said in Butters as follows: [16] The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings, and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error. [17] On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18]-[19] per Basten JA: "18 The other evidence of remorse is recorded in a report dated 13 December 2006, prepared by a psychologist, Mr Peter Ashkar. Mr Ashkar reported: "He accepts responsibility for the … offence. He tells me he was heavily intoxicated on bourbon when he committed this offence. … He also tells me he was in the company of antisocial peers at this time. He attributes his offending behaviour to his alcohol use at that time. Matthew expresses considerable regret and remorse over his offending behaviour: 'I was definitely in the wrong … I'm sorry … I do feel bad for doing it … I've learnt my lesson … Never to get in trouble again … It's just not worth it'." 19 The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. A sentencing judge should indicate the manner in which he or she has taken into account the possibility that expressions of regret may be triggered by the threat of incarceration. On the other hand, it is fair to say in the present case that his Honour accepted the genuineness of his attempts to overcome abuse of alcohol which would provide a basis for the conclusion that there was a genuine attempt to address an underlying cause of the violent behaviour." [18] In the present case the statutory precondition in s 21A(3)(i) was satisfied in any event. There was ample evidence in the tendered material that the applicant accepted responsibility for his actions and acknowledged the very significant injury suffered by victim as a result of his actions. However, as is clear from the remarks on sentence extracted at [15] above, his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this Court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30]). (emphasis added)
The position was not dissimilar to what was said in a number of other cases where the same question was in issue. In Pfitzner v R [2010] NSWCCA 314 McClellan CJ at CL (Hislop and Price JJ agreeing) said at [35]: Although his Honour's findings could perhaps have been expressed with greater clarity I do not understand him to have concluded merely because the applicant did not give evidence that he could not make a finding of remorse. If he had for that reason precluded the possibility of a finding there would be an error. However, when the paragraph is read as a whole I understand his Honour to be saying that without evidence from the applicant there was not sufficient evidence to persuade him that a finding of remorse should be made. I am not persuaded that this conclusion was not open to his Honour and accordingly reject ground 1 of the appeal.
In Imbornone v R [2017] NSWCCA 144 Wilson J (Hoeben CJ at CL and R A Hulme J agreeing) said at [56]: His Honour did not conclude that, for there to be evidence of remorse the applicant was obliged to give evidence. Rather, he found that the evidence that had been provided by the applicant on this aspect of the matter - that of the untested hearsay claim to Dr Bench - was insufficient for him to find on the balance of probabilities that the applicant was in fact remorseful in the way referred to in s 21A(3)(i). His Honour's conclusion is well supported by authority.
Finally, in Newman v R [2018] NSWCCA 208, the Court (Payne JA, Johnson and Campbell JJ) said at [25]: The sentencing judge was entitled to exercise considerable caution in relying upon untested assertions in Dr Blake's reports in the absence of sworn evidence from the applicant: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; Singh v R [2018] NSWCCA 60 at [31]. His Honour was entitled to conclude that the applicant, by these reports, had not "provided evidence that he or she has accepted responsibility for his or her actions" within the meaning of s 21A(3)(i).
When her Honour's Remarks are considered overall, it is clear that her Honour was not suggesting that unsworn testimony about remorse was incapable of satisfying s 21A(3)(i). The onus was on the applicant to establish, on the balance of probabilities, remorse as a mitigating factor. There were no expressions of remorse in any form until the applicant's letter which post-dated the sentence hearing on 5 May 2017. Where counsel for the applicant had indicated to the sentencing judge that there was a possibility of an affidavit or a letter from the applicant about a number of matters, and the applicant chose to write only a letter on which he could not be cross-examined, her Honour was entitled to take the view that the late expressions of remorse in the letter were not sufficient to satisfy the provisions of s 21A(3)(i).
These grounds should be rejected.

Ground 3: The sentence imposed is manifestly excessive

Submissions

The applicant submitted that, despite her Honour's findings that the behaviour involved "a serious example of behaviour made criminal pursuant to s 61I", the sentence was manifestly excessive and that her Honour paid insufficient regard to subjective matters in mitigation relied upon by the applicant.
The applicant submitted that the JIRS statistics were supplied to her Honour but that there was no evidence in the Remarks on Sentence that her Honour had any regard to the statistics. The applicant pointed out that the JIRS statistics demonstrated that for 79 cases involving only s 61I offences the longest non-parole period ordered for offenders who pleaded not guilty was six years, and that was imposed on ten offenders or 13% of all offenders. The applicant submitted that of 80 cases of offenders who pleaded not guilty the longest sentences of nine years' imprisonment were ordered for only two offenders or 3% of all offenders, and a ten year sentence was imposed on one offender, representing 1% of all offenders.
The applicant made reference to four cases involving intoxicated complainants. The first was Tabbah v R [2017] NSWCCA 55 where a sentence of five years six months with a non-parole period of three years was not the subject of an appeal. In the matter of Day v R [2017] NSWCCA 192 the applicant had been sentenced to a period of imprisonment of five years and nine months with a non-parole period of three years, and the applicant's appeal against sentence was dismissed. Those two cases were referred to by the Crown Prosecutor at the sentence hearing.
Senior counsel for the applicant referred to two other cases. In Rajendran v R [2014] NSWCCA 113 after a Muldrock error was found, the sentence of seven years and six months with a non-parole period of five years was confirmed by this Court. In Ali v R [2014] NSWCCA 45 after a Muldrock error was found, a sentence of ten years and eight months with a non-parole period of eight years was reduced to eight years and eight months with a non-parole period of six years and six months.
Those four cases were relied upon to demonstrate that the present sentence was manifestly excessive.
The Crown submitted that the simple failure of the sentencing judge to refer to the sentencing statistics was not an error, and is no indication that the sentence was manifestly excessive. The Crown submitted that, in any event, merely because the applicant's sentence fell in the upper half of the range of the statistics does not establish manifest excess. The issue is whether the sentence fell outside the range of the permissible exercise of sentencing discretion. The statistics, the Crown submitted, failed to demonstrate that it did.
The Crown drew attention to the maximum penalty and the standard non-parole period as important guideposts which must be considered in assessing the appropriate penalty to be imposed. The Crown submitted that there was no complaint made by the applicant about her Honour's finding that the objective seriousness of the offence lay in the upper or top band of the middle range.

Consideration

It is scarcely necessary to re-iterate what this Court has frequently said about the limitations of relying on a series of individual cases to establish a range of sentences and, in turn, to argue that the sentence under consideration is manifestly excessive, but Pham v R [2014] NSWCCA 115 at [57], Dang v R [2014] NSWCCA 47 at [55] and Vandeventer v R [2013] NSWCCA 33 at [45] make the point clearly. Nevertheless, in deference to the submissions made by senior counsel for the applicant, I will briefly examine each of the cases said to be comparative.
It is difficult to have much regard to the sentence said to have been imposed in Tabbah (the judgment does not say what the sentence was) because the Court was chiefly concerned with an unreasonable verdict ground of appeal. Whilst the circumstances of the offending bore some resemblance to the present offending, nothing is known about any subjective matters nor of the assessment made by the sentencing judge of the objective seriousness of the offending.
The offending in Day arose from very different facts. The sentencing judge characterised the objective seriousness as lying just below the middle range. He found that the applicant was reckless as to the consent of the complainant. The applicant was intoxicated at the time of the offending, and he was found to have mistakenly gone to the room where the complainant was sleeping, thinking his partner was in that room. Although his criminal history entitled him to no leniency, the sentencing judge found that the applicant was unlikely to reoffend and had good prospects of rehabilitation. None of that makes for a good comparison with the present facts and findings.
The offending in Rajendran also arose from very different facts. The matter was referred to this Court by Johnson J following an application pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) on the basis that the sentence had been infected by Muldrock error. The appellant had persuaded the complainant to accompany him to his place of employment on the basis that he had prospective work for her as a model. Both the appellant and the complainant were well affected by alcohol. Ultimately the appellant had protected sexual intercourse with the complainant despite her resistance to what he was doing.
The Court by majority (Bellew J with whom Gleeson JA agreed, Hamill J dissenting) found that the offending was not planned - the appellant only intended to have consensual intercourse with the complainant. However, the Court found that the appellant knew that the complainant did not consent. The Court found that the appellant had good prospects of rehabilitation and was unlikely to reoffend. The Court found that the appellant continued to demonstrate no remorse for his offending. The majority found that no lesser sentence was warranted.
Ali was also a case that came to this Court on a reference after an application under s 78 based on a Muldrock error. It involved a taxi driver who took advantage of an intoxicated passenger and had unprotected sexual intercourse with her without her consent. At the trial, the appellant did not deny the sexual contact but asserted that the complainant was the instigator of it. This Court accepted the findings of the sentencing judge that there was no remorse, with that finding informing the prospects of rehabilitation and the danger of reoffending. By the time he came to be resentenced by this Court he had expressed considerable remorse for what he had done.
Where the sentence imposed by this Court in Ali was eight years and eight months with non-parole period of six years and six months, it is difficult to see how the case assists the present applicant in an assertion of manifest excess. The fact that there were two associated indecent assault charges does not assist because the sentences for those offences were made wholly concurrent with the sentence for the sexual intercourse without consent.
A particular difficulty for the applicant in the present matter is that there is no challenge to the assessment of objective seriousness by the sentencing judge. Her Honour found it to be in the upper or top band of the middle range. Even taking into account the subjective features which favoured the applicant, the sentence imposed does not stand out as being inconsistent with the finding of objective seriousness.
Another difficulty for the applicant is that the statistics, whilst showing that the present sentence is towards the upper end of the range of sentences, certainly do not indicate that it sits outside that range. However, even if it were outside the range, that would not in itself establish manifest excess for the reasons given by Bellew J (Hoeben CJ at CL and Slattery J agreeing) in Adam Jolly v R [2013] NSWCCA 76 at [75].
Finally, in determining whether a sentence is manifestly excessive it is necessary to have regard to the principles set out in Hughes v R [2018] NSWCCA 2 at [86] by the Court (Payne JA, R A Hulme and Garling JJ) which need not be set out here.
Although the present sentence might be thought to be a heavy one, there is nothing to suggest that it is plainly unreasonable or unjust, or even that it is outside the range of sentences which appear in the statistics and in the comparative cases put forward.
I would reject this ground of appeal.

Conclusion

I would propose the following orders: (1) Extend time for leave to appeal to 15 January 2019. (2) Grant leave to appeal. (3) Dismiss the appeal.

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: 12 July 2019

Crimes Act 1900(NSW)s 61I

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Judgment (12 paragraphs)

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