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Court of Criminal Appeal 14 September 2018

Al Ghazzawi v R

[2018] NSWCCA 204

Sexual offencesAssault & violence
CRIMINAL LAW SENTENCE APPEAL ASSAULT WITH AN ACT OF INDECENCY DEGREE OF PREMEDITATION SERIOUS OFFENDING

Citation: Al Ghazzawi v R [2018] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 14 September 2018
Judge(s): Macfarlan JA, Bellew J, Wilson J

Background

The applicant pleaded guilty to one count of assault with an act of indecency under s 61L of the Crimes Act 1900 (NSW), carrying a maximum penalty of five years' imprisonment. The offending occurred in January 2011 when the applicant entered a woman's unit uninvited, stood over her while she slept on a couch and masturbated, and then attempted to grab and kiss her when she woke and confronted him. He left only when the victim told him others were about to arrive.

The offending was preceded by a visit to the same premises earlier that day, during which the applicant had approached the victim's sister and her friends, asked for phone numbers, and told the group "we will be back" as he drove away. The applicant was arrested in Victoria several months after the incident, and proceedings were not finalised until 2017.

In June 2017, Judge Bennett SC in the District Court sentenced the applicant to 1 year and 9 months' imprisonment, with a non-parole period of 12 months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the sentence of 1 year and 9 months' imprisonment (with a 12-month non-parole period) for assault with an act of indecency was manifestly excessive in all the circumstances.
  • Whether the sentencing judge correctly assessed the objective seriousness of the offending, given that the specific act of indecency constituting the assault was, in isolation, at the lower end of the scale.
  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including possible paranoid schizophrenia, intellectual impairment, and other mitigating factors.

Decision

The Court of Criminal Appeal dismissed the appeal, finding the sentence was not unreasonable or plainly unjust and was well within the sentencing judge's discretion. Bellew J, with whom Macfarlan JA and Wilson J agreed, held that the sentencing judge was required to assess the offending in light of all the agreed facts, not merely the isolated act of indecency that constituted the technical elements of the charge.

The Court emphasised several aggravating features: the applicant had deliberately returned to the premises after a prior uninvited approach earlier that day, entered the unit without invitation, woke the sleeping victim, persisted in his conduct despite the victim's repeated demands that he leave, and only departed when he believed others were about to arrive. These features demonstrated a degree of premeditation and disregard for the victim that supported the conclusion that the offending was serious.

On the subjective case, the sentencing judge had been unable to make positive findings about the extent of the applicant's paranoid schizophrenia, given the limited medical evidence before the court. However, the judge had taken that evidence into account in finding special circumstances, which resulted in a shorter custodial component. The Court of Criminal Appeal found no error in that approach.

The applicant's account of events in a pre-sentence report also materially contradicted the agreed facts, which undermined his claims of remorse. The sentencing judge had acknowledged this tension but accepted the guilty plea and the applicant's in-court acknowledgement of wrongdoing as evidence of some remorse.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Applicant returned to custody to complete his sentence.
  • Applicant eligible for parole on 13 March 2019.
  • Sentence to expire on 13 December 2019.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where an offence involves a sequence of related conduct, a sentencing court must assess objective seriousness by reference to the entirety of the agreed facts, not the technical act constituting the charge viewed in isolation.
  • A degree of premeditation, demonstrated by the applicant returning to the premises after an earlier unwanted approach and entering without invitation, was a significant aggravating factor in the sentencing assessment.
  • Where medical evidence of a mental condition is insufficiently detailed to permit positive findings, a sentencing court does not err by declining to make those findings while still taking the possibility of the condition into account as part of special circumstances.
  • An applicant's account of events that materially contradicts agreed facts can legitimately affect the weight a sentencing court gives to claimed remorse, even where a guilty plea has been entered.
  • Sentencing statistics and comparable cases are relevant to, but not determinative of, whether a sentence is manifestly excessive; the Court found nothing in the authorities before it that demonstrated the sentence was unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Baines v R [2016] NSWCCA 132
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Nikolovska [2010] NSWCCA 169; 209 A Crim R 218
- RLS v R [2012] NSWCCA 236