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Court of Criminal Appeal 14 February 2020

Rahman v R

[2020] NSWCCA 13

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE LEAVE GRANTED APPEAL DISMISSED

Citation: Rahman v R [2020] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 14 February 2020
Judges: Macfarlan JA, Adamson J, Beech-Jones J (Beech-Jones J delivered the principal judgment)

Background

The applicant was convicted of having sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, following a plea of guilty. The offending occurred in January 2018 at the applicant's home, where the victim, a 24-year-old Dutch national on a working holiday visa, was taken after both parties had been drinking at work. A second offence under s 61I was included on a Form 1 (a document that allows additional offences to be taken into account at sentencing without a separate conviction).

In the District Court, Judge Colefax SC sentenced the applicant to six years imprisonment with a non-parole period of four years and six months. The applicant was 38 at sentencing, had no prior criminal history, and received a 25% discount on his sentence for his early guilty plea.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: first, that the sentencing judge took into account an irrelevant consideration; and second, that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by referring to the sexual act constituting sexual intercourse "in this country," and whether that phrase introduced an irrelevant consideration affecting the approach to specific deterrence.
  • Whether the sentence of six years with a non-parole period of four years and six months was manifestly excessive when compared to sentences imposed in comparable cases.

Decision

Ground 1: Irrelevant consideration

The applicant argued that the phrase "in this country, that is sexual intercourse" was a reference to his Bangladeshi background, and that it improperly influenced the sentencing judge's approach to specific deterrence. Beech-Jones J rejected this argument entirely. His Honour found that the phrase was nothing more than the sentencing judge discharging his duty to provide reasons that explained the legal basis for the sentence being imposed. The sentencing judge had delivered his reasons in the form of a direct address to the applicant, and the phrase served to explain why the conduct described (cunnilingus) constituted the offence charged. No error in reasoning or principle was established.

The judgment affirmed that sentencing judges are obliged to give reasons for their decisions, and that those reasons serve to explain the order to the person against whom it is made. Citing Pearce v The Queen, the Court noted that criminal law must be administered in a fashion that can be understood by ordinary citizens.

Ground 2: Manifest excess

The applicant relied on a number of comparable cases to argue the sentence was too high. The Court examined four cases in detail, including Bullock v R, Afghan-Baig v R, McGrory v R, and Naveed v R. In each, the court found the sentence imposed on the applicant was consistent with, or more lenient than, sentences for comparable offending when adjustments were made for differing plea discounts, findings of remorse, and other individual factors. The Court was not satisfied that the sentence was unreasonable or plainly unjust, and dismissed this ground as well.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's reference to local law (in this case, that cunnilingus constitutes sexual intercourse "in this country") did not constitute an irrelevant consideration where the statement served only to explain the legal basis of the sentence to the offender.
  • The Court of Criminal Appeal confirmed that the obligation to give reasons for sentence includes explaining the legal and factual foundation of the order to the person subject to it, consistent with Pearce v The Queen and the principle that justice must be seen to be done.
  • In dismissing the manifest excess ground, the Court observed that offences under s 61I committed by a stranger upon a victim will almost invariably attract a custodial sentence of significant length, even where the offender demonstrates good character, remorse, and reasonable prospects of rehabilitation.
  • No error was established in the District Court's approach to specific deterrence, and the applicant's background was not found to have played any impermissible role in the sentencing process.
  • Where a sentencing judge frames reasons as a direct address to the offender, the Court confirmed this is a recognised practice and does not in itself indicate that an irrelevant consideration has been taken into account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2)

Cases
- Afghan-Baig v R [2018] NSWCCA 15
- Ali v R [2010] NSWCCA 35
- Ali v R [2014] NSWCCA 45
- Aslan v R [2014] NSWCCA 114
- Bullock v R [2016] NSWCCA 131
- DPP v Dowd [2018] NSWCCA 102
- Hili v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378
- McGrory v R [2018] NSWCCA 226
- Muldrock v R (2011) 244 CLR 120
- Nand v R [2014] NSWCCA 293
- Naveed v R [2019] NSWCCA 149
- NM v R [2012] NSWCCA 215
- Norman v R [2012] NSWCCA 230
- Pearce v The Queen (1998) 194 CLR 610
- R v Gerard Cortese [2013] NSWCCA 148
- R v Rahman [2019] NSWDC 173