Citation: R v Md Kowsar Ali [2008] NSWDC 319
Court: District Court of New South Wales
Date: 14 November 2008
Judge(s): Berman SC DCJ
Background
The offender was a taxi driver who, in the early hours of 3 November 2007, picked up a young woman who had been drinking heavily with friends. Her friends had arranged and paid for the taxi to get her home safely. She was significantly intoxicated, had vomited, and was drifting in and out of sleep during the journey.
The offender committed three offences against her during the trip. He indecently assaulted her by reaching up her sleeve and touching her breasts, despite her pulling away and saying "no, don't." He then indecently assaulted her a second time by touching her between the legs while she was asleep. He subsequently stopped the taxi at an unknown location, moved her to the back seat, removed her clothing, and raped her by penetrating her vaginally and ejaculating inside her, despite her repeated verbal protests and crying.
After the offences, the complainant exited the taxi and called triple zero. The recording of that call was played at trial and formed powerful evidence of her distress. The offender was convicted by a jury. He was sentenced in November 2008.
Legal Issues
- What sentence was appropriate for two counts of indecent assault and one count of sexual intercourse without consent, given the circumstances of the offending?
- How should the offender's lack of remorse and maintenance of a false version of events affect the assessment of rehabilitation prospects and re-offending risk?
- How should general deterrence be reflected in the sentence, given the particular vulnerability of intoxicated passengers using taxis?
- Whether the objective seriousness of the rape placed it above the midpoint of the range, warranting a non-parole period exceeding the standard seven-year non-parole period?
- Whether special circumstances existed that would justify a longer parole period than the statutory ratio ordinarily provides?
Decision
The sentencing judge found the rape to be above the middle of the range of objective seriousness. The offending involved full penile-vaginal intercourse without a condom and ejaculation inside the complainant, committed against a highly vulnerable victim who had clearly and repeatedly communicated her lack of consent. The court rejected a defence submission that the offender had not ejaculated inside the complainant, finding that proposition beyond reasonable doubt to be false given DNA evidence.
The court placed substantial weight on general deterrence. It observed that many people rely on taxis as the safest way to get home when intoxicated, and that a clear message was required that those who exploit such vulnerability for sexual gratification would receive lengthy custodial sentences. The court also addressed directly any suggestion of contributory fault on the part of the complainant or her friends, rejecting it in unequivocal terms.
The offender showed no remorse. He maintained his false account to Probation and Parole officers and to a psychologist, claiming the complainant had initiated the sexual activity. The court found it could not therefore identify good prospects of rehabilitation or a low risk of re-offending. While the court acknowledged that the offender was entitled to plead not guilty without penalty, the persistence of his false account was directly relevant to remorse and rehabilitation.
The court declined to find special circumstances that would justify a departure from the standard ratio between the non-parole period and the head sentence. It noted that treating the offender's first time in custody as a special circumstance would be inconsistent with setting a non-parole period that was already the minimum considered appropriate in the circumstances. The two indecent assault counts were ordered to be served concurrently with each other and with the rape sentence, as they formed part of the same course of conduct.
Orders Made
- Counts 1 and 2 (indecent assault): fixed terms of two years imprisonment each, commencing 4 November 2007, served concurrently.
- Count 4 (sexual intercourse without consent): non-parole period of eight years commencing 4 November 2007, with a head sentence of ten years and eight months.
- Overall sentence: non-parole period of eight years, head sentence of ten years and eight months.
- Eligible for release to parole on 3 November 2015.
Key Takeaways
- The District Court held that the exploitation of a highly vulnerable, heavily intoxicated passenger by a taxi driver placed the objective seriousness of the rape above the midrange, justifying a non-parole period exceeding the standard seven-year benchmark for that offence.
- A complete absence of remorse, demonstrated by the offender's persistent maintenance of a false account across the trial, to correctional authorities, and in psychological assessment, directly undermined any positive finding about rehabilitation prospects or likelihood of re-offending.
- General deterrence carried substantial weight in sentencing where the offending targeted a class of people, intoxicated passengers in taxis, who are regularly placed in positions of vulnerability and have limited alternatives for getting home safely.
- The sentencing court made clear in emphatic terms that intoxication does not diminish a complainant's entitlement to safety, and that neither the complainant nor her friends bore any responsibility for the offending.
- No special circumstances were found; treating first-time custody as a special circumstance was incompatible with imposing a non-parole period already set at the minimum considered appropriate given all the circumstances.
Legislation and Cases Referenced
Legislation
- Offence of indecent assault: maximum penalty of five years imprisonment (as applicable at the time of sentencing)
- Offence of sexual intercourse without consent: maximum penalty of fourteen years imprisonment, with a standard non-parole period of seven years (as applicable at the time of sentencing)
Cases
No cases were cited in the portions of the judgment provided.