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Court of Criminal Appeal 14 December 2012

Al Mosawe v R

[2012] NSWCCA 275

Sexual offences
CRIMINAL LAW APPEAL SENTENCE DISCOUNT FOR PLEA MANIFEST EXCESS NEED FOR GENERAL DETERRENCE

Citation: Al Mosawe v R [2012] NSWCCA 275
Court: Court of Criminal Appeal, NSW
Date: 14 December 2012
Judge(s): McClellan CJ at CL, Rothman J, Adamson J

Background

The applicant, a taxi driver, pleaded guilty on the third day allocated for trial to one count of attempting sexual intercourse without consent under s 61P of the Crimes Act 1900. The offence occurred in November 2009 when the applicant pulled over his taxi while conveying a 19-year-old passenger alone, kissed her without consent, and made repeated attempts to digitally penetrate her despite her clear protests. The applicant desisted only after the complainant continued to push him away and demand to be left alone.

The applicant was sentenced to a non-parole period of 15 months imprisonment with a total term of 2 years and 6 months. A 10% discount was applied for the utilitarian value of the late guilty plea. The sentencing judge found the offence at the lower end of the scale for like offences, noted significant general deterrence considerations, and made a finding of special circumstances.

The applicant sought leave to appeal on two grounds: that the sentencing judge failed to properly recognise the benefit to the complainant of being spared the ordeal of giving evidence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to give adequate weight to the fact that the complainant was spared the trauma of giving evidence as a result of the guilty plea.
  • Whether the sentence of 15 months non-parole period and 2 years and 6 months total term was manifestly excessive in all the circumstances.

Decision

On the first ground, McClellan CJ at CL was not persuaded that any error had occurred. The sentencing judge had acknowledged that the complainant was required to prepare herself to give evidence before the plea was entered, and had found the plea demonstrated "some contrition." The qualification in that finding appropriately reflected the lateness of the plea and the fact that the complainant had still been required to relive her experience in anticipation of giving evidence, even though she ultimately did not have to do so.

On manifest excess, the Court held that the sentence was not manifestly excessive. Although the offence fell at the lower end of the scale, it involved a deliberate and persistent attempt at sexual assault on a vulnerable passenger who had no capacity to remove herself from the situation. The applicant continued his conduct after the complainant's initial protests, committing a serious breach of the trust a passenger places in a taxi driver.

The Court acknowledged the applicant's significant subjective circumstances, including his diagnosis of PTSD, prior imprisonment and alleged torture under a foreign regime, his role as sole income earner for a family, and the fact that his time in custody would be more onerous due to language difficulties, mental health issues, and the likely need to serve time in protection. These factors had been expressly considered by the sentencing judge. Nevertheless, the Court found the custodial term was justified by the seriousness of the offence and the strong need for general deterrence.

The Court also noted the absence of any directly comparable sentencing precedents that demonstrated the sentence was outside the appropriate range. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A 10% discount for a late guilty plea entered on the third day of trial was upheld as appropriate where the complainant had been required to prepare to give evidence, even though she was ultimately spared from doing so.
  • The Court of Criminal Appeal confirmed that a qualification such as "some contrition" in sentencing remarks can properly reflect the late timing of a plea without constituting appellable error.
  • Where a taxi driver commits sexual assault on a lone passenger, the need for general deterrence carries significant weight in sentencing, given the trust passengers are entitled to place in drivers and their vulnerability during the journey.
  • No error was established in the sentencing judge's approach to the applicant's mental health diagnosis; while PTSD may have affected judgment at the time of the offence, it did not displace the need for a custodial sentence.
  • In dismissing the appeal, the Court reinforced that subjective mitigating factors, including refugee background, family circumstances, and physical and psychological health, are relevant but do not necessarily render an otherwise proportionate sentence manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61P

Cases:
- R v Gretch (NSWCCA, 11 December 1998, unreported)
- Raczkowski v R [2008] NSWCCA 152