Afghan-Baig v The Queen - [2018] NSWCCA 15

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Afghan-Baig v R [2018] NSWCCA 15
Hearing dates: 14 November 2017
Decision date: 16 February 2018
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [2]
Button J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW ― appeal against sentence ― sexual offences against two women ― three counts of sexual intercourse without consent ― digital/vaginal penetration ― applicant of good character ― pleas of guilty in the District Court ― whether aggregate sentence manifestly excessive ― appeal dismissed
Category: Principal judgment
Parties: Habibullah Afghan-Baig (Applicant)
Regina (Respondent)
Representation: Counsel:
J W Conomos (Applicant)
B Baker (Respondent)
Solicitors:
Valenti & Valenti Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/184173
Publication restriction: Non-Publication Order Name and Identity of the complainants.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 April 2017

Before:

Baly SC DCJ

File Number(s):

2015/00253613

Judgment

BATHURST CJ: I agree with the orders proposed by Button J and with his Honour’s reasons.
HOEBEN CJ AT CL: I agree with Button J.
BUTTON J:

Introduction

Mr Habibullah Afghan-Baig (the applicant) has sought leave to appeal to this Court on the single ground that an aggregate sentence imposed upon him by Baly SC DCJ on 11 April 2017 is manifestly excessive.
The salient aspects of the matter may be shortly stated (there being no ground asserting that the learned sentencing judge made any error of fact, the following is derived from the remarks on sentence).

Objective features

The applicant had pleaded guilty in the District Court to seven sexual offences committed against two adult victims. Those pleas were entered after his application to sever the counts in an indictment was rejected.
The agreed facts placed before her Honour revealed the following.
As at 2015, the applicant was running a bakery that had branches in the Sydney suburbs of Fairfield and Lakemba.
On 10 July 2015, the first victim (to whom I shall refer by the pseudonym Fiona) posted an advertisement on a website seeking employment in the hospitality industry. On the same day, the applicant contacted her, and invited her to an interview at the premises in Lakemba a few days later.
When she attended on that day, the applicant showed her around the premises. He also asked her personal questions about her romantic relationships. At some stage he encouraged her to sit with him on a sofa. He also touched her by hugging her, and pulling her close to him. Fiona told the applicant that she had to leave, and she commenced to walk towards the stairway of the premises in order to do so. He came up behind her, hugged her, and grabbed her breasts with both hands and squeezed them. The victim said “No”, and pushed him away.
That conduct constituted count one, an indecent assault that carried a maximum penalty of imprisonment for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Afghan-Baig v The Queen

Details

AGLC: Afghan-Baig v The Queen [2018] NSWCCA 15
Case: [2018] NSWCCA 15
Decision Date: 16 February 2018

CaseChat Overview and Summary

The applicant was convicted in the District Court for three counts of sexual intercourse without consent, involving digital and vaginal penetration of two separate victims. He appealed to the higher court, arguing that the aggregate sentence imposed was manifestly excessive. The applicant, who had no prior criminal history, pleaded guilty to all charges. The District Court had sentenced the applicant to imprisonment, and the applicant sought a reduction in his sentence, claiming it was too harsh given his otherwise unblemished character and the circumstances of the offences. The central issue was whether the aggregate sentence was manifestly excessive when considering the totality of the circumstances, including the applicant's background and the nature of the offences.

The court examined the principles of sentencing, particularly the requirement to ensure sentences are proportionate and not manifestly excessive. It considered the gravity of the offences, the applicant's good character, and the need for deterrence and denunciation. The court held that the sentence, while severe, was not manifestly excessive. It acknowledged the heinous nature of the crimes and the need for appropriate punishment, but also took into account the applicant's background and the fact that he had pleaded guilty, which typically warrants a reduction in sentence. The court was satisfied that the sentence reflected a fair balance between the need to protect society and the principles of proportionality and individual circumstances.

The appeal was dismissed. The court found that the sentence imposed was appropriate and not manifestly excessive, given the circumstances of the case. The court emphasised the importance of recognising the gravity of sexual offences and the need for adequate punishment, while also acknowledging the mitigating factors present in this case. The sentence imposed by the District Court was upheld as just and proportionate.

Orders