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Court of Criminal Appeal 12 July 2019

Naveed v R

[2019] NSWCCA 149

Sexual offences
CRIMINAL LAW APPEALS PAROLE PERIOD OF 6 YEARS 4 MONTHS LETTER WAS SAID TO DEMONSTRATE REMORSE WHERE APPLICANT DID NOT GIVE EVIDENCE CONCLUSION OPEN TO THE SENTENCING JUDGE

Citation: Naveed v R [2019] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 12 July 2019
Judge(s): Hoeben CJ at CL, R A Hulme J, Davies J

Background

The applicant, an Uber driver, was convicted after trial of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). The offending occurred in October 2015, when the applicant picked up a heavily intoxicated woman in Kings Cross, drove to a darkened side street, and sexually assaulted her in the back seat of his vehicle. The complainant's blood alcohol concentration at the time of the offence was estimated to be between 0.196 and 0.276 grams per 100 millilitres.

The sentencing judge found beyond reasonable doubt that the applicant knew the complainant was not consenting, relying on evidence that she said "no" and attempted to push him away. The applicant was sentenced to nine years' imprisonment with a non-parole period of six years and four months. The maximum penalty for the offence is 14 years, with a standard non-parole period of seven years.

The applicant sought leave to appeal against the sentence, raising three grounds: error in the treatment of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), error in dealing with the evidence of remorse, and manifest excess.

  • Whether the sentencing judge erred in her interpretation and application of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which addresses remorse as a mitigating factor
  • Whether the sentencing judge erred in the manner she dealt with the applicant's post-hearing letter of apology as evidence of remorse
  • Whether the sentence of nine years' imprisonment with a non-parole period of six years and four months was manifestly excessive

Decision

On the remorse grounds, the Court of Criminal Appeal found that the sentencing judge's conclusion that the applicant had not established genuine remorse was open on the evidence. The applicant had not given evidence at the sentence hearing, and a letter of apology was provided to the judge only after the hearing had concluded. The sentencing judge was entitled to give that letter limited weight, particularly given the applicant had maintained at trial that the complainant was the instigator of the sexual contact.

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 requires that remorse be genuine, and the Court confirmed that a sentencing judge is not obliged to accept post-conviction correspondence as evidence of that quality. The applicant's failure to give sworn evidence, combined with the late timing of the letter and the inconsistency with the trial defence, supported the judge's finding. No error in the exercise of the sentencing discretion was established on either of the remorse grounds.

On manifest excess, the Court noted that the applicant did not challenge the sentencing judge's assessment of objective seriousness, which was placed in the upper or top band of the middle range. Statistical data showed that, while the sentence was towards the upper end of the range for comparable offences, it did not fall outside that range. The Court also considered a number of comparable cases, including Ali v R [2014] NSWCCA 45, where this Court had imposed eight years and eight months with a non-parole period of six years and six months for a broadly similar offence. Assessed against those comparators and the established principles from Hughes v R [2018] NSWCCA 2, the sentence was described as a heavy one but not plainly unreasonable or unjust.

Orders Made

  • Time for leave to appeal extended to 15 January 2019
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to accept a post-hearing letter of apology as proof of genuine remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), particularly where the applicant did not give sworn evidence and maintained a contradictory position at trial.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the failure of an applicant to give evidence at a sentence hearing is a relevant consideration when assessing whether remorse has been genuinely established.
  • Comparable sentencing statistics showing a sentence at the upper end of the range do not, without more, establish manifest excess. As confirmed in Adam Jolly v R [2013] NSWCCA 76, a sentence falling outside the statistical range would not of itself demonstrate manifest excess.
  • Where an applicant does not challenge the sentencing judge's finding on objective seriousness, that unchallenged finding forms an important baseline against which the overall sentence is assessed on appeal.
  • Under the principles set out in Hughes v R [2018] NSWCCA 2, a sentence must be shown to be plainly unreasonable or unjust before a court of criminal appeal will intervene on grounds of manifest excess.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 61I
- Crimes (Appeal and Review) Act 2001 (NSW) s 78
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases
- Adam Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198
- Ali v R [2014] NSWCCA 45
- Butters, Jarrod Dean v R [2010] NSWCCA 1
- Dang v R [2014] NSWCCA 47
- Day v R [2017] NSWCCA 192
- Hughes v R [2018] NSWCCA 2
- Imbornone v R [2017] NSWCCA 144
- Newman v R [2018] NSWCCA 208
- Pfitzner v R [2010] NSWCCA 314
- Pham v R [2014] NSWCCA 115
- Rajendran v R [2014] NSWCCA 113
- Tabbah v R [2017] NSWCCA 55
- Vandeventer v R [2013] NSWCCA 33