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

1. BATHURST CJ: I agree with the orders proposed by Button J and with his Honour’s reasons.

2. HOEBEN CJ AT CL: I agree with Button J.

3. BUTTON J:

Introduction

4. 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.

5. 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

6. 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.

7. The agreed facts placed before her Honour revealed the following.

8. As at 2015, the applicant was running a bakery that had branches in the Sydney suburbs of Fairfield and Lakemba.

9. 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.

10. 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.

11. That conduct constituted count one, an indecent assault that carried a maximum penalty of imprisonment for five years.

12. On 24 August 2015, the second victim (Susan) placed an advertisement on the same website seeking work. The applicant responded, and invited her to an interview at the bakery at Fairfield. On the following day, Susan arrived with her sister; in due course, the applicant offered the latter a job, but not the former. The two women departed.

13. Afterwards, some text messages passed between the applicant and Susan, in which he expressed a sexual interest in her; she expressed an interest only in employment. It was agreed that she would return to the bakery two days later.

14. On her return, the applicant showed her around, and then took her to a room in which there were two sofas. The two of them sat down on separate sofas. The applicant then adopted a similar modus operandi to the one he had adopted towards Fiona: he requested that Susan sit next to him and give him a hug; she declined and walked away; he wrapped his arms around her; and she pushed him away. After that, she went downstairs and worked for a time.

15. About an hour later, the applicant asked Susan to come upstairs on a pretext. He sat next to her on one of the sofas, and held her when she tried to move away from him. The applicant hugged and kissed her, rubbed her buttocks, and then grabbed her breasts with his right hand. That latter conduct constituted count two, another offence of indecent assault.

16. When the second victim tried to escape from the applicant, he restrained her, and grabbed her breasts again. She tried to remove his hands from her chest. He kissed her, and continued grabbing her breasts; that conduct constituted count three, a further offence of indecent assault.

17. The applicant became more forceful, and locked the legs of the victim under his own. He pulled down her top, and kissed her exposed breasts. After that, he pulled her pants down and kissed her on the stomach. He then placed his mouth on her exposed vagina, and then digitally penetrated her there.

18. That act constituted the fourth count, an offence of sexual intercourse without consent, knowing that the victim was not consenting thereto. That offence carries a maximum penalty of imprisonment for 14 years, along with a standard non-parole period of seven years.

19. After that, the applicant prevented the victim from pulling her pants up. He moved his body on top of hers whilst kissing her. He placed his hand on her vagina and digitally penetrated her again, at the same time putting his mouth on her vagina. That digital penetration constituted count five, a further offence that can be referred to in short form as sexual intercourse without consent.

20. After that, the applicant moved off the victim and removed her pants. He removed his own trousers, with the result that he was naked from the waist down. He pulled down her bra, exposing one of her breasts. The applicant then placed his mouth over her exposed breast, and again digitally penetrated her vagina. That latter act constituted the sixth count, a third count of sexual intercourse without consent.

21. Whilst these events were happening, the victim repeatedly tried to remove the hand of the applicant, repeatedly asked him to stop, and threatened to call the police.

22. Finally, the applicant rolled off the victim, and pulled her onto the sofa and onto his lap. He pressed his penis against her back whilst she was struggling to get away from him. He wrapped his right leg over her legs, in order to hold her against him. Whilst doing that, he touched and squeezed her breasts. That conduct constituted count seven, a fourth and final count of indecent assault.

23. Eventually, Susan was able to stand up, and dress herself. The applicant said that he had ejaculated, and asked her to provide him with some tissues. She did so, and he used them to wipe the sofa. The victim could smell semen, which disgusted her. She took the opportunity to wipe the saliva of the applicant from her body. She continued dressing and walked to the door. The applicant gave her $100 as she left, purportedly for the work she had done in the bakery.

24. Remarkably, the whole of the offending against Susan was captured by CCTV located within that part of the bakery. Her Honour watched it in its entirety, and noted that the offending against Susan extended over a period of about 30 minutes. Her Honour also noted that the agreed facts that had been tendered accurately reflected what was on the CCTV; that Susan was making it “very plain” to the applicant that his conduct towards her was unwelcome; that the applicant was clearly persistent towards her; that he was to be seen restraining the victim at times; that the applicant was much larger than the second victim (whom her Honour described as “petite”); and, finally, that – entirely as one would expect – Susan appeared “upset and distressed”.

25. The applicant was arrested a few days after the second incident, and engaged in an interview with police in which he denied that he had forced himself upon Susan.

Various assessments in the remarks on sentence

26. There was a dispute between the parties on sentence as to how the request of the applicant to Susan for a tissue in order to clean up his semen was to be characterised. The Crown submitted that it was redolent of objectification of the second victim, whereby after having just been seriously sexually assaulted, she was asked by her assailant to provide him with what the Crown prosecutor called “cleaning services”.

27. The solicitor appearing on sentence for the applicant (who also appeared before this Court) submitted to her Honour that one should not overreact to the CCTV footage, and that one should be cautious to avoid making findings of aggravation that may not be well-founded.

28. In the event, her Honour resolved the point in favour of the applicant: she assessed the request as reflecting simple tiredness or laziness on the part of the applicant, not an intention on his part to further degrade the second victim.

29. As for the assessment of objective seriousness with regard to count one (the indecent assault against Fiona), whilst noting that there was an undoubted power imbalance between the applicant and the first victim, her Honour assessed that offence as falling “below the mid-range”.

30. As one would expect, her Honour assessed the indecent assaults committed against Susan as “self-evidently far more serious”. The ultimate finding was that those offences were “just into the middle of the range for offences of their kind”, without differentiation between the individual offences.

31. As for the offences of sexual intercourse without consent committed against Susan, whilst accepting that there was no physical violence above and beyond the violence of the offences themselves, her Honour assessed that inherent violence as “extreme”.

32. Turning to the form of sexual penetration that was part of the three most serious offences, her Honour noted that each case must turn on its own facts, and that there can be no inflexible classification in that regard. Having said that, her Honour expressed the view that, in the circumstances of this particular case, the offences would have been even more serious if the offender had used his penis to penetrate the second victim, as opposed to his fingers.

Subjective features

33. Turning to an assessment of the offender himself, the sentencing judge noted that he was aged 40 years as at the date of sentence, and had an unblemished past. Born and raised in Afghanistan, he was one of eight children. Judge Baly SC accepted that life in that country was difficult for the applicant, not only because of the death and destruction occasioned by the longstanding war there, but also because the childhood of the applicant was marred by the violence of his father.

34. The applicant had departed Afghanistan and travelled to Iran, thereafter Pakistan, and finally Australia in 1999 as a refugee at the age of 23. Her Honour accepted that his disrupted and deprived early life reduced the moral culpability of the applicant, although not greatly.

35. Her Honour noted that the applicant had been married, and that two children aged 10 and 11 as at the date of sentence are the result of that union. The applicant and his former wife had divorced in 2012, although they remained close, he residing with her whilst on bail after being charged with these offences, and she giving character evidence in support of him on sentence.

36. On resettlement in Australia the applicant worked in a factory and a bakery. In 2007, he began to run his own business, and her Honour accepted that he had been a very hard worker, and made a valuable contribution to the community. Many witnesses spoke in his favour on sentence, both in the witness box and by way of documents.

37. A pre-sentence report was assessed by her Honour as favourable in a number of ways, although an attempt to justify his crimes by way of his lack of education and damaging upbringing was noted adversely.

38. Her Honour accepted the evidence as to the otherwise good character of the applicant, his remorse, and his good prospects of rehabilitation. The offences were characterised by her Honour as “an aberration, but a serious one which must be met by condign punishment”.

39. Her Honour concluded the review of subjective features in the remarks on sentence by explicitly referring to the following mitigating factors: the utilitarian discount of 15%; remorse; prior good character; unlikelihood of reoffending; and good prospects of rehabilitation generally.

Conclusion of remarks and imposition of sentence

40. On the other hand, her Honour noted that the sentences to be imposed must seek to deter generally those who sexually assault persons who simply place advertisements on websites in an effort to seek gainful employment, or otherwise expose themselves to the risk of such offending.

41. Her Honour also referred to the undoubted harm that such offences cause to their victims.

42. Finally, her Honour accepted that special circumstances had been established that should lead to a downward adjustment in the ratio between the non-parole period and the head sentence.

43. Her Honour decided to impose an aggregate sentence. The following individual sentences were indicated.

44. For count one, the indecent assault upon Fiona, an indicative sentence of a head sentence of imprisonment for five months.

45. For each of counts two, three and seven, the indecent assaults upon Susan, an indicative head sentence of imprisonment for seven months.

46. For each of counts four, five and six, the offences of sexual intercourse without consent upon Susan, an indicative head sentence of five years, with an indicative non-parole period of three years.

47. Ultimately, an aggregate head sentence of imprisonment for six years was imposed, along with an aggregate non-parole period of three years and seven months. That sentence dated from the day of its imposition, but her Honour had indicated earlier in the remarks on sentence that the “time in custody” would be reduced by three months and 13 days spent bail refused, and that a subsequent period spent subject to strict bail would also be modestly taken into account.

Summary of submissions in support of ground

48. The solicitor for the applicant did not invite the attention of this Court to other decisions of the District Court at first instance, nor to decisions of this Court on appeal, nor to sentencing statistics pertaining to either or both.

49. Rather, in succinct written and oral submissions, he simply asked us to reflect on the length of the aggregate sentence actually imposed, bearing in mind the favourable subjective features, and the fact that the aggregate sentence was derived from a number of indicative sentences, each of which bore the benefit of a discount of 15% from its starting point.

50. He accepted that the task undertaken by her Honour was one of instinctive synthesis, and furthermore that her Honour had taken into account “all relevant matters”.

51. He suggested that, despite the favourable finding made about the request for tissues, nevertheless perhaps that deeply unattractive aspect of the offences against the second victim had unconsciously affected the reaction of the sentencing judge, and could provide an explanation for the imposition of a sentence that he submitted was manifestly excessive.

52. Finally, although it was not a separate ground of appeal, the solicitor for the applicant asked this Court to reflect whether the discount provided for the pleas of guilty entered in the District Court after the unsuccessful application to sever the counts was “somewhat niggardly”. I understood him to be doing so as a particular of the single ground, not as a separate matter.

Determination

53. I consider that the conciseness of the solicitor for the applicant in his submissions should be maintained in my response to them.

54. Dealing with a subsidiary question first, bearing in mind the time at which they were entered and the circumstances in which they were entered, the pleas of guilty led to a utilitarian discount of 15% that was, in my opinion, well open to the discretion of the sentencing judge.

55. As well as that, there is nothing to suggest that the sentencing judge reacted emotionally to the request for tissues, or gave it too much weight: as I have said, its characterisation was resolved in favour of the applicant.

56. Separately, it is well-established that, although it is only the aggregate sentence that can be the subject of an appeal against sentence, still and all analysis of the indicative sentences and their starting points, if any, may shed light on whether the aggregate sentence actually imposed is manifestly excessive.

57. Turning to undertake that exercise with regard to all of the indicative sentences for the indecent assaults against both victims, bearing in mind their brevity, they are incapable of supporting an argument that the aggregate sentence is manifestly excessive.

58. And taking a moment to “un-discount” the indicative head sentences for the three offences of sexual intercourse without consent, one can see that they each derive from a starting point of a little under five years and 11 months. Such a starting point should, I think, be characterised as not insubstantial for offences of digital penetration, committed by a man who was of previously unblemished character, and with regard to whom a number of other favourable subjective findings were made.

59. But the analysis need not go further than that, for the simple reason that the aggregate head sentence actually imposed for seven offences, three of which possessed an indicative head sentence of five years, was imprisonment for six years. That shows that, in assessing totality, her Honour adopted a very marked degree of concurrence in the putative sentencing structure underpinning the aggregate head sentence; in drawing attention to that approach, I am not to be understood as criticising it.

60. In other words, whilst I accept that analysis of indicative sentences and their starting points can sometimes be useful, in this case in light of the substantial degree to which the indicative sentences must have “overlapped” with each other in arriving at the ultimate aggregate sentence, further pursuit of that analysis could never lead to the success of the ground.

61. Reflecting more generally, it is true that many findings were made in favour of the applicant. To be weighed against those findings are the fact that the applicant was dealt with for seven offences, three of which bore a substantial maximum penalty and standard non-parole period; that there were two victims, not one; that women who had publicly sought work were targeted, manipulated, and sexually assaulted as a result; that there was an undoubted physical and economic power imbalance between the applicant and his victims; that there was a flavour of planning in the repetition of the modus operandi; that there were repeated acts of sexual penetration against one victim; that the ordeal of that woman was extended; that the pleas of guilty came relatively late, and when the proceedings developed adversely to the applicant; and, finally, that special circumstances were found that significantly reduced the aggregate non-parole period from what it would otherwise have been.

62. Taking into account all of those matters, and reflecting on them individually and as a whole, I think it could be said that the aggregate head sentence of six years and the aggregate non-parole period of three years seven months are not insubstantial. I do not believe, however, that it has been affirmatively demonstrated that either of them is manifestly excessive.

Proposed orders

63. I therefore propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

**********

Decision last updated: 16 February 2018