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8
Court of Criminal Appeal 10 December 2021

R v Ibrahim

[2021] NSWCCA 296

Sexual offences
CRIME APPEAL AGAINST SENTENCE WHETHER MANIFESTLY INADEQUATE PHARMACIST NO CONSENT AGE DIFFERENTIAL

Citation: R v Ibrahim [2021] NSWCCA 296
Court: Court of Criminal Appeal, NSW
Date: 10 December 2021
Judge(s): Johnson J, Lonergan J, Dhanji J

Background

The respondent, a registered pharmacist, pleaded guilty to a single charge of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence occurred on 1 July 2019 at a Mascot pharmacy, where a 19-year-old woman had attended for a private consultation to obtain emergency contraception. The respondent, then aged 43, digitally penetrated the victim without her consent during what he falsely represented was a medical examination.

The offence lasted approximately two minutes before the victim ended the contact. She immediately raised the alarm, and subsequent DNA analysis confirmed the victim's DNA on the respondent's fingers. The respondent had denied the offending to police.

In the District Court, the respondent was sentenced to a total term of two years' imprisonment, comprising a nine-month non-parole period and a balance of term of 15 months. The sentence incorporated a 10% discount for the utilitarian value of a guilty plea entered on the day set down for trial. The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge's assessment of the offence as falling in the lower range of objective seriousness was open on the facts
  • Whether the total sentence of two years was manifestly inadequate
  • Whether the non-parole period of nine months was manifestly inadequate
  • Whether, even if manifest inadequacy were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene

Decision

The Court of Criminal Appeal accepted that the non-parole period of nine months was manifestly inadequate, though the majority found the head sentence of two years, while lenient, was not manifestly inadequate in all the circumstances. The Crown pressed four aggravating features: a significant breach of trust by a registered health professional; actual knowledge that the victim was not consenting; a substantial age differential of 24 years; and offending that, while unplanned, was not merely momentary. Dhanji J accepted those features carried real weight but declined to find the head sentence itself fell outside the available range.

On the non-parole period, the Court found nine months inadequate having regard to the objective seriousness of the offence, the standard non-parole period of seven years, and the limited weight that could properly be given to the respondent's good character. Johnson J specifically noted that prior good character was effectively a prerequisite for registration as a pharmacist and could not be treated as straightforwardly mitigating in circumstances where that registration gave the respondent professional access to vulnerable members of the public.

Despite identifying manifest inadequacy in the non-parole period, the Court exercised its residual discretion and declined to intervene. The discretion is available to a Crown appeal court in exceptional circumstances, where interference would produce a disproportionate impact on the respondent or third parties. The Court was persuaded to exercise that discretion by a combination of exceptional factors, including evidence of severe and deteriorating health and behavioural issues affecting the respondent's young son, conditions in custody that had worsened materially since the Delta outbreak of COVID-19, and the fact that the respondent had already served more than two months of the non-parole period by the time of the appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a finding of manifest inadequacy does not automatically produce a resentencing outcome: the court retains a residual discretion to decline to intervene where exceptional circumstances exist.
  • A registered health professional's prior good character carries reduced mitigating weight at sentencing where that good character was itself a condition of the registration that enabled the offending to occur.
  • Actual knowledge of the victim's non-consent, as opposed to recklessness or an unreasonable belief in consent, is a relevant factor in assessing the objective seriousness of a sexual assault charge under s 61I.
  • Deteriorating conditions in custody arising from the COVID-19 Delta outbreak, combined with serious family hardship, were accepted as exceptional features capable of engaging the residual discretion against resentencing on a Crown appeal.
  • No error was required to be identified by the appellant for the Court to reassess objective seriousness independently, consistent with Carroll v The Queen (2009) 254 ALR 379, but a successful appeal still requires the sentence to fall outside the available range in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61HE, 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A, 44, 54A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- Carroll v The Queen (2009) 254 ALR 379; [2009] HCA 13
- Jung v R [2017] NSWCCA 24
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Griffiths v The Queen (1977) 137 CLR 293
- Everett v The Queen (1994) 181 CLR 295
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Afghan-Baig v R [2018] NSWCCA 15
- Aliabadi v R [2020] NSWCCA 224
- Cordeiro v R [2019] NSWCCA 308
- DPP (Cth) v Pratten [No 2] (2017) 94 NSWLR 194; [2017] NSWCCA 42