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Cases Cited: R v Aroub [2017] ACTSC 187 R v Ballantyne (Unreported, ACT Supreme Court, Murrell CJ, 1 April 2014) R v Buda-Kaa [2013] ACTCA 46 R v Kindl [2015] ACTSC 128 R v Lindsay [2020] ACTCA 25 R v Maafu [2020] ACTSC 328 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Taylor [2015] ACTSC 43 R v UG [2018] ACTSC 243 Wyper v The Queen [2017] ACTCA 59

Parties: The Queen (Crown)

Haider Ali (Offender)

Representation: Counsel

S Janackovic (Crown)

R Thomas (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Eidelweisz Lawyers (Offender)

File Number: SCC 92 of 2017 MOSSOP J:

Introduction

1. The offender, Haider Ali, was found guilty by a jury of two counts of committing an act of indecency on the victim without her consent, being reckless as to whether she was consenting. This is contrary to s 60(1) of the Crimes Act 1900 (ACT) and the maximum penalty is seven years’ imprisonment. The offender was also found guilty of one count of sexual intercourse without consent, being reckless as to whether the victim was consenting. This is contrary to s 54(1) of the Crimes Act and the maximum penalty is 12 years’ imprisonment.

2. This is another case to which the comments of Elkaim J in R v Maafu [2020] ACTSC 328 at [5] apply. It falls into the third category identified by his Honour.

Facts

3. The offender and the victim were work colleagues who had worked together for approximately three years. On Saturday 8 October 2016 the victim and her friend, who I will refer to as LM, planned to have a night out in Canberra City. The victim drove to LM’s residence at approximately 6pm that evening and brought some spare clothes as she intended to stay in the spare room following their night out.

4. The victim and LM attended a number of venues and, over the course of the evening, the victim had a number of drinks. After attending another venue, the victim and LM went to Mooseheads at around 4am. There, the victim saw the offender. He was with a friend who was visiting him from Melbourne. The group all chatted. All were intoxicated to a greater or lesser extent.

5. While at Mooseheads the offender wrote memos on his mobile phone and showed them to the victim who responded by writing a note in response. One of the notes written by the offender suggested that they “get together”. The note in response suggested it would be weird because they worked together. This was the victim’s “polite way of turning him down”. However, the victim was not unhappy about the offender being around because “too many guys were hitting on [her and LM]”.

6. The offender’s friend left Mooseheads before it closed, at around 5am. Around closing time the victim ordered an Uber to take her and LM back to LM’s house. The offender asked whether he could come with them and be dropped off at his home along the way. The victim and LM agreed. Once in the Uber, the offender said that he did not have his house keys and would not be able to get into his house. LM said he could sleep on her couch.

7. The victim, the offender and LM arrived at LM’s house. They sat in the loungeroom looking for a movie that the offender and LM had been discussing in the Uber ride. LM told the offender he could sleep on the couch and then she went to her bedroom with her boyfriend to go to sleep. The victim then went into the spare bedroom and closed the door behind her. The door was not locked. She changed into her sleepwear and went to bed in her underpants, a t-shirt and trackpants. She fell asleep.

8. Sometime later, the victim awoke to the offender lying on her on top of the bedcovers and kissing her with his tongue inside her mouth. She pushed him off. He lay beside her in the bed and got under the bedcovers. He began to talk about work-related things, but the victim said she wanted to sleep. The offender said that nobody would need to know about it and the victim repeatedly said she wanted to sleep. She was tired and closing her eyes at the time.

9. The offender then placed his hand underneath her shirt and squeezed her left breast. This makes up count 1, the first act of indecency without consent. The victim again said “no” and pushed the offender’s hand away. He removed his hand from underneath her shirt.

10. The victim then closed her eyes again, believing the offender had stopped. He then placed his hand down her pants and underneath her underwear and inserted his fingers into the victim’s vagina. He moved his fingers up and down. This makes up count 2, sexual intercourse without consent. The victim said “no” and the offender again said that nobody would need to know. The victim pushed the offender’s hand away and he removed it from her pants.

11. The victim then received a Snapchat from a friend and work colleague, who I will refer to as BX. They exchanged several Snapchats before the victim asked BX to call her, which she did. The victim was acting strangely so BX asked whether something was wrong, but she did not respond.

12. Whilst the victim was on the phone to BX the offender began trying to pull down her pants. This makes up count 3, the second count of an act of indecency without consent. The victim tried to push the offender off her. A few minutes later the phone disconnected. BX then sent two text messages to the victim and then called her again. The victim said she was going to the bathroom.

13. At 7:09am, whilst in the bathroom and on the phone to BX, the victim sent a text message to BX saying “Omfg, it’s Haider from work he keeps trying to bang and I’m like trying to sleep and he keep touching me.” The victim remained in the bathroom as she spoke to BX and told her what had happened during the evening out and back at the house. The victim eventually left the bathroom, got her bag from the loungeroom and left the house. She then told BX on the phone that the offender had been trying to hug, kiss and touch her, and that he had touched her vagina and she had kept pushing him away. The victim then drove home.

14. Around 8:30am LM woke up and went into the spare bedroom to find the offender in the bed. The offender asked LM where the victim was and LM told him to leave her house.

15. At about 11am the victim had a text message exchange with LM in which she made a complaint about the offender’s conduct.

16. At 11:09am the offender sent the victim a message on Facebook asking her to thank her friend for hosting him.

17. Four days later the offender sent her another message on Facebook saying:

I hope you are not angry with me. If you are I really apologise. I swear I didn’t have courage to speak about anything. Coz I do not remember anything at all. How and where I met you guys? How I ended up going to your friends house and I don’t remember anything at all. I just only remember when your friend woke me up. Before that i don’t remember a single thing. I apologise for everything. I hope you’d forgive me and have no grudge if I was silly. You are very nice person and I always had and have a great respect for you.

18. I do not accept that what is said in this message accurately reflects the state of the offender’s memory of the events.

19. The victim disclosed the offences to a colleague at work and her workplace became aware of the incident. On 5 December 2016 police attended her residence where she recounted the incident in detail.

20. The offender was found guilty by a jury after a trial in which he denied any sexual activity. The victim was cross-examined on those denials. The jury must have accepted the evidence of the victim and rejected that of the offender. The victim’s evidence was compelling and there were contemporaneous records of her complaints about the offender’s conduct.

Objective seriousness

21. The sexual intercourse without consent involved relatively brief digital penetration. It occurred in circumstances where the offender had been rebuffed in his attempts to kiss her and touch her breast. There was no violence or threats of violence or physical injury to the victim. It is below the mid range of objective seriousness for this offence.

22. Both acts of indecency are also below the mid range of objective seriousness for this offence. The squeezing of the breast is the physically more serious as it involved skin on skin contact with the victim’s breast, however the attempts to pull the victim’s pants down occurred after the incident of digital penetration in circumstances where the lack of consent must have been very clearly established. Because of that aspect, I treat them as of the same objective seriousness.

Subjective circumstances

23. The offender is currently 38 years old and was 34 years old at the time of the offences. He was born and raised in Pakistan as one of seven siblings to his parents’ union. He advised the author of the pre-sentence report of a positive upbringing with a focus on quality education and family and stated that he maintains communication with his family, who are supportive of his situation. His family remains in Pakistan and the United Kingdom. His father died in 2017.

24. The offender reported that he completed his secondary education in Pakistan. He relocated to Australia in 2001 to undertake tertiary education, and he received a Bachelor of Business Accounting. He reported that he had worked in the accounting industry in Melbourne, Sydney and Canberra. His most recent employment was with the ACT Government for a period of approximately five years. He resigned from this position in 2018 as a result of these matters.

25. The offender has been employed at the bakery in the Alexander Maconochie Centre since March 2020. He has taken the opportunity to engage in the education and training opportunities available whilst in detention on remand. He reported being positive about securing future employment, however identified that he is not yet aware of how this conviction would affect his employment opportunities. He is currently reliant on his family for financial support and reported no outstanding debts.

26. The offender stated that he could live with a close friend in the ACT if he were released into the community until he could secure his own accommodation. He reported no associates or friends in the community who were involved in antisocial or criminal behaviour.

27. The offender denied any history of illicit substance use, either previously or currently. He drinks alcohol socially and, on such occasions, he may consume up to eight alcoholic beverages.

28. He reported no association with community based activities or groups. When in the community he goes to the gym, watches documentaries and reads.

29. He has physical health issues at this time and his mental health is currently stable.

30. The offender declined to comment on the offences. He stated that he had pleaded not guilty and given evidence to that effect in court. He reported that he had no choice but to accept the decision of the court.

31. The author of the pre-sentence report was of the opinion that the offender has a low risk of general reoffending and an average risk of sexual reoffending. Criminal history

32. He has two minor traffic offences on his criminal history, so I treat him as being a person of relevantly good character.

Time in custody

33. The offender has been in custody since 21 July 2019 in relation to these offences, a period of almost 17 months. He was taken into custody in the United Kingdom after having left the country in breach of his bail obligations during an initial trial of the charges in November 2017.

Comparable cases

34. The Crown referred me to a number of cases which it said were, to a greater or lesser degree, indicative of current sentencing practice in relation to comparable cases involving sexual intercourse without consent. However, the submission of the Crown was that the cases that it identified were, in light of the maximum penalty of 12 years’ imprisonment, cases in which the sentences were “very low”.

35. The cases to which the Crown referred were the R v Miller [2019] ACTCA 25; 279 A Crim R 232; R v Aroub [2017] ACTSC 187; Wyper v The Queen [2017] ACTCA 59; R v Taylor [2015] ACTSC 43; R v Ballantyne (Unreported, ACT Supreme Court, Murrell CJ, 1 April 2014); R v Buda-Kaa [2013] ACTCA 46.

36. In addition, counsel for the offender referred me to a number of cases including R v Kindl [2015] ACTSC 128, R v Lindsay [2020] ACTCA 25 and R v UG [2018] ACTSC 243.

37. I have taken those sentences into account as indicative of the sentencing practice of the court.

Consideration

38. This is a case involving the sexual assault of a woman in circumstances in which the offender hoped that the assault would lead to some consensual sexual activities. Notwithstanding the statements at other times that the offender had respect for the victim, his conduct on this occasion indicated either that he did not have such respect or that he was labouring under a fundamental misconception about appropriate sexual behaviour.

39. At trial, the offender put to the victim what the jury must have found to be a false narrative as to what occurred. The offender has made no admissions following his conviction. It is therefore not possible to find any expressions of remorse or insight into his offending conduct that might reflect well upon his potential for rehabilitation. He is assessed as being a low risk of general reoffending and an average risk of sexual reoffending.

40. The offender otherwise has good prospects of leading a lawful life having regard to his history of education, employment and network of law-abiding friends. The sentence that I impose will deter him from further sexual offending.

41. In my view, having regard to the pattern of sentencing, disclosed in the cases to which I was referred, a sentence of imprisonment of two years is appropriate. Each of the two indecency charges will carry a sentence of imprisonment of two months. They may be served concurrently with each other but cumulative as to one month upon the sexual intercourse without consent charge. While they occurred as part of the same incident there was some temporal separation between them and they added to the overall gravity of the offending conduct. The head sentence is therefore 25 months. The non-parole period will be 17 months which is 68% of the head sentence. Orders

42. The orders of the Court are:

43. On the charge of sexual intercourse without consent (CC2016/12929) the offender is convicted and sentenced to imprisonment for a period of two years commencing on 21 July 2019 and ending on 20 July 2021.

44. On the charge of committing an act of indecency (CC2016/12927) the offender is sentenced to imprisonment for two months commencing on 21 June 2021 and ending on 20 August 2021.

45. On the charge of committing an act of indecency (CC2016/12928) the offender is sentenced to imprisonment for two months commencing on 21 June 2021 and ending on 20 August 2021.

46. The non-parole period commences on 21 July 2019 and ends on 20 December 2020.

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Mossop.

Associate:

Date: 18 December 2020