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36
Court of Criminal Appeal 2 March 2010

Ali v R

[2010] NSWCCA 35

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE FOLLOWING TRIAL TAXI DRIVER SEXUALLY ASSAULTS PASSENGER VULNERABLE VICTIM SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Ali v R [2010] NSWCCA 35
Court: New South Wales Court of Criminal Appeal
Date: 2 March 2010
Judge(s): McClellan CJ at CL, Hulme J, Johnson J

Background

The applicant, a taxi driver in his early twenties, was convicted by a jury of one count of sexual intercourse without consent (under s 61I of the Crimes Act 1900) and two counts of indecent assault (under s 61L). The offences were committed against an 18-year-old passenger who was heavily intoxicated after a night out with friends, who had placed her in a taxi to take her home safely.

During the trip, the applicant indecently touched the victim twice and then drove to a back street, deviated from the intended route, and raped her. The sentencing judge found that the applicant had deliberately disabled the taxi's security camera. After the offence, the victim exited the vehicle and called 000; the recording of that call was played to the jury and was described as powerful evidence of her distress.

In the District Court, Judge Berman SC sentenced the applicant to 10 years and 8 months' imprisonment for the s 61I offence, with a non-parole period of 8 years. Concurrent fixed terms of 2 years were imposed for each indecent assault. The applicant sought leave to appeal against those sentences.

  • Whether the sentencing judge erred in assessing the objective seriousness of the s 61I offence as above the mid-range
  • Whether the sentencing judge erred in concluding that the applicant's continued denial of guilt meant there were poor prospects of rehabilitation and a higher risk of reoffending
  • Whether the sentencing judge erred in the construction or application of the non-parole period
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal rejected all four grounds of appeal and dismissed the appeal, granting leave but affirming the sentences below.

On objective seriousness, the Court found no error in the sentencing judge's assessment. The offence involved a deliberate targeting of a vulnerable, intoxicated victim, premeditated deviation to a secluded location, disabling of the security camera, and rape in the face of clear, repeated verbal refusals. These features collectively supported a finding that the offence fell above the mid-range of seriousness.

On the rehabilitation and reoffending ground, the Court accepted that a sentencing judge cannot treat denial of guilt as an aggravating factor in its own right. However, it confirmed that where an offender maintains a false account and shows no remorse, a sentencing judge is entitled to take that into account when assessing the prospects of rehabilitation and the likelihood of reoffending. In the circumstances of this case, the sentencing judge had applied the principle correctly.

The Court also dismissed the manifest excess argument. It noted that sentencing statistics and comparator cases must be used with caution, particularly for s 61I offences, which cover a wide range of conduct, and that pre-standard non-parole period decisions are of limited utility. The Court emphasised that sentences must be determined by the application of correct sentencing principles to the facts of the individual case, rather than by reference to statistical medians. Given the gravity of the offending, the vulnerability of the victim, the applicant's position of trust as a taxi driver, and the need for both specific and general deterrence, the sentence was within the range open to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • A sentencing judge does not err by treating an offender's continued denial of guilt and absence of remorse as relevant to the assessment of rehabilitation prospects and reoffending risk, provided that denial is not treated as a standalone aggravating factor.
  • Where a sexual assault involves a premeditated targeting of a vulnerable victim, deliberate steps to avoid detection, and repeated disregard of expressed refusals, an assessment of objective seriousness above the mid-range is open to the sentencing court.
  • The Court of Criminal Appeal confirmed that sentencing statistics for s 61I offences warrant particular caution, given the breadth of conduct the definition of "sexual intercourse" encompasses.
  • In dismissing the appeal, the Court reinforced that sentencing decisions for individual offenders must be anchored in correct sentencing principles applied to the specific facts, not calibrated to a statistical median range of past sentences.
  • General deterrence carries heightened significance where an offender occupies a position of trust or responsibility toward the victim, as a taxi driver does in relation to a passenger.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases cited (selected):
- R v Kowsar Ali [2008] NSWDC 319 (sentencing remarks)
- Mulato v R [2006] NSWCCA 282
- R v AJP [2004] NSWCCA 434
- R v PGM [2008] NSWCCA 172
- McIntyre v R [2009] NSWCCA 305
- R v MAK [2006] NSWCCA 381
- Alseedi v R [2009] NSWCCA 185
- Markarian v The Queen [2005] 228 CLR 357
- The Queen v Olbrich [1999] 199 CLR 270
- R v Way [2004] 60 NSWLR 168
- R v Hibberd [2009] NSWCCA 20
- Jeffries v R [2008] NSWCCA 144
- Han v R [2009] NSWCCA 300
- R v AEM [2002] NSWCCA 58