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Court of Criminal Appeal 13 November 2023

Alenezi v R

[2023] NSWCCA 283

Sexual offences
CRIME APPEAL AGAINST SENTENCE ABOVE MID RANGE OF OBJECTIVE SERIOUSNESS OFFENDER RECKLESS AS TO CONSENT RANGE

Citation: Alenezi v R [2023] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 13 November 2023
Judges: Adamson JA; Basten AJA (principal judgment); Sweeney J (agreeing)

Background

The applicant pleaded guilty to one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), committed in October 2019 at Woolloomooloo, Sydney. The victim, a 22-year-old woman, had consumed significant quantities of alcohol over the course of the evening and was described as "really drunk" when the applicant approached her. He assisted her to her feet and walked her to a laneway, where he removed her clothing and had penile-vaginal intercourse with her without her consent. A further offence of penile/oral intercourse was taken into account on a Form 1.

The sentencing judge in the District Court allowed a 25% discount for an early guilty plea and imposed a sentence of 7 years and 6 months imprisonment with a non-parole period of 5 years. The applicant sought leave to appeal that sentence, arguing the sentencing judge had made several errors.

The notice of appeal was filed nearly two years after the notice of intention to appeal, well outside the applicable time limit. The Court of Criminal Appeal considered the question of extension of time before turning to the substantive grounds.

  • Whether leave to appeal should be granted out of time, given significant unexplained delays by the applicant's legal representatives
  • Whether recklessness as to consent (rather than actual knowledge of non-consent) can support a finding of objective seriousness above the midrange
  • Whether the sentencing judge erred by failing to make findings on the applicant's remorse, risk of reoffending, and prospects of rehabilitation
  • Whether the sentencing judge erred in refusing to accept untested out-of-court statements as a basis for favourable findings
  • Whether the sentence of 7 years and 6 months was manifestly excessive

Decision

Extension of time: The Court granted leave to file out of time, but not without criticism of the handling of the delay. The applicant's solicitor was unable to explain the delay before the matter was assigned to the firm, and the Court noted that a solicitor accepting an out-of-time assignment is duty-bound to make enquiries about reasons for the preceding delay. Further delays attributable to the individual solicitor's ill-health were noted as insufficient, given that the firm bore the responsibility for timely filing. Leave was ultimately granted because the applicant bore no personal responsibility for the delay and may have been disadvantaged by it had the appeal succeeded.

Objective seriousness (Ground 1): The Court rejected the argument that a finding of recklessness as to consent could not support a rating of above midrange objective seriousness. The assessment of objective seriousness is evaluative and impressionistic, and the sentencing judge was entitled to consider all the circumstances of the offending, not only the applicant's state of mind. Applying BM v R [2023] NSWCCA 68, the Court found no reviewable error in the assessment.

Failure to make findings (Ground 2): Mitigating factors such as remorse, risk of reoffending, and prospects of rehabilitation are only required to be considered when they are "relevant and known to the court," and the onus rests on the offender to establish them. The applicant did not give evidence at the sentencing hearing. The Court found it unremarkable that, without satisfaction as to "true remorse," the sentencing judge was unable to make favourable findings on rehabilitation and risk of reoffending. The sentencing judge had addressed character references from the applicant's wife, mother, and cousins, and was not obliged to accept untested out-of-court statements relayed to third parties.

Manifest excess (Ground 3): The Court examined comparable cases under s 61I and found that the JIRS statistics relied upon by the applicant had excluded a number of relevant comparable decisions from this Court. Once those omitted cases were taken into account, the sentence was not shown to be at the high end of the range. The four references in the sentencing remarks to the exploitation of the victim's vulnerability were not over-emphasis; each arose in an appropriate context. The sentencing judge's mention of the applicant's "propensity" to exploit vulnerable women was made in the context of assessing the risk of reoffending and was not treated as an additional aggravating factor. The appeal was dismissed.

Orders Made

  • Leave granted to rely upon the notice of appeal filed on 31 July 2023
  • Leave granted to appeal against the sentence imposed on 8 October 2021
  • Appeal dismissed

Key Takeaways

  • Recklessness as to consent does not preclude a sentencing court from assessing the objective seriousness of a sexual assault offence as above the midrange. The assessment is evaluative and draws on all the circumstances of the offending, not solely the offender's mental state.
  • Where an offender does not give evidence at a sentencing hearing, establishing mitigating factors such as remorse, reduced risk of reoffending, and good prospects of rehabilitation becomes significantly more difficult. The onus lies on the offender to place those matters before the court.
  • Untested out-of-court statements relayed to third parties carry limited weight at sentence. A sentencing judge who declines to make favourable findings on the basis of such material commits no error.
  • Solicitors accepting assignments on out-of-time appeals bear an obligation to make enquiries about the reasons for any delay predating their assignment, so that a proper explanation can be placed before the Court when seeking an extension of time.
  • JIRS statistics used to argue manifest excess may be incomplete. The Court of Criminal Appeal compared the sentence against a broader pool of comparable cases and found the sentence within range once omitted decisions were considered.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 44
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5

Cases:
- Ali v R [2010] NSWCCA 35
- Ali v R [2014] NSWCCA 45
- BM v R [2023] NSWCCA 68
- House v The King (1936) 55 CLR 499
- Imbornone v R [2017] NSWCCA 144
- Lowe v The Queen (1984) 154 CLR 606
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- Nand v R [2014] NSWCCA 293
- Naveed v R [2019] NSWCCA 149
- R v Ferguson [2022] NSWCCA 147
- R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Rahman v R [2020] NSWCCA 13
- Rajendran v R [2014] NSWCCA 113
- Wong v The Queen (2001) 207 CLR 584