Al Mosawe v The Queen

[2012] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Al Mosawe v R [2012] NSWCCA 275

Hearing dates:

2 October 2012

Decision date:

14 December 2012

Before:

McClellan CJ at CL at [1]
Rothman J at [31]
Adamson J at [32]

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal - sentence - discount for plea - whether 10% discount for late pleas sufficient - where complainant spared trauma of giving evidence - manifest excess - where applicant taxi driver convicted of attempted sexual assault of passenger - need for general deterrence

Legislation Cited:

Crimes Act 1900

Cases Cited:

R v Gretch NSWCCA, (11 December 1998, unreported)
Raczkowski v R [2008] NSWCCA 152

Category:

Principal judgment

Parties:

Mustafa Al Mosawe (Applicant)
Crown

Representation:

Counsel:
D Carroll (Applicant)
Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/25184

 Decision under appeal 

Date of Decision:

2011-12-12 00:00:00

Before:

English DCJ

File Number(s):

2009/25184

Judgment

1. McCLELLAN CJ at CL: The applicant pleaded guilty to one count of attempting sexual intercourse without consent contrary to s 61P of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment. There is no standard non-parole period for an offence constituted by an attempt to have sexual intercourse without consent.

1. He was sentenced to a non-parole period of 15 months imprisonment with a total term of 2 years and 6 months imprisonment.

1. The applicant originally pleaded three grounds of appeal. However, Ground 2 was not pursued. The grounds which were ultimately argued were as follows:

Ground 1: Failure to recognise that the applicant's plea spared the complainant the ordeal of giving evidence.

Ground 3: Manifest excess.

1. The relevant facts are as follows. On 14 November, 2009 the complainant went to Rosehill Racecourse to celebrate her 19th birthday. After the races she went with friends to the Rydges Hotel. The complainant had drunk moderately throughout the day and was not intoxicated. At about 9 pm, accompanied by two friends, she caught a taxi from the Rydges Hotel to the St Clair area. The applicant was the driver of that taxi. The applicant then drove the victim and her friends to various locations in the North-West so that the group could change with a view to going to Panthers.

1. At some point, the complainant decided that she did not wish to go to Panthers and asked the applicant to drive her home and then return to take the others to Panthers.

1. The complainant became the only occupant in the taxi and she sat in the front passenger seat. On the journey back to her home the applicant pulled the taxi over to the side of the road and put the handbrake on. The applicant lent over and kissed the complainant on the mouth. He inserted his tongue into her mouth during the kiss. At the same time the offender placed his right hand between the legs of the complainant. She was wearing a dress and he touched her upon her vagina on the outside of her underwear. The complainant pushed the applicant away and said "what are you doing, what are you doing?" and she closed her legs tightly, lifted her heels towards the seat and turned her knees toward the passenger door. The applicant then reached underneath her right leg and touched her on the outside of her vagina with his finger, attempting to insert his finger into her vagina. The complainant pushed the applicant's hand away and said "leave me alone, don't touch me". The applicant straightened back up in his seat.

1. The complainant next tried to open the taxi door, saying "I want to get out, let me out, I'm going". The applicant replied "I will take you home". The complainant commenced to cry and the applicant started up the taxi. The complainant told him to stop near a friend's house, part way towards her house. She paid the fare and requested a receipt.

1. The complainant contacted friends and told them what had happened, she then rang 000 to report the matter to police.

1. The applicant was arrested at his home in Fairfield. He participated in an interview. He denied kissing or sexually assaulting the complainant. He stated to the police that all three passengers were very drunk.

Subjective matters

1. The applicant was educated in Iraq where he was a secondary school teacher. He has a degree in literature. He worked in Jordan for five years before coming to Australia as a refugee.

1. The applicant was married in Australia and has two children. His wife speaks no English and has no family or support in Australia. The applicant was the sole income earner in the family and was paying off a mortgage on the family home. As a result of the commission of the offence the applicant has lost his job as a taxi driver and, until he was sentenced, was in receipt of Centrelink benefits.

1. The applicant was imprisoned and allegedly tortured under Saddam Hussein's regime for political agitation. His imprisonment under the Hussein regime was said to be linked to his position as an academic and a minority Christian.

1. The applicant has been diagnosed with post traumatic stress disorder and a range of other psychological disorders for which he is being treated. The sentencing judge noted the opinion of the psychologist that these symptoms may have impacted upon the applicant's judgment at the time he committed this offence.

1. Apart from this disorder the applicant suffers from back pain from a disease in his lumbar spine for which he takes medication. He also has hearing loss.

1. The applicant was aged 48 at the time he was sentenced.

The remarks of the sentencing judge

1. The applicant was originally indicted for an offence contrary to 61L of the Crimes Act, which alleged an actual assault. However, on the third day that had been allocated for the trial he pleaded guilty to the alternative count for which he was sentenced. In the circumstances the sentencing judge allowed a 10% discount for the utilitarian value of the plea.

1. The sentencing juge found that the offence falls towards the lower end of the scale constructed for like offences. There was no violence and the incident was not planned. The incident was an attempt at digital penetration, which the offender ceased when he was requested to do so. The sentencing judge found that the applicant's plea "does demonstrate some contrition" and said that having "heard from him, I find that he is remorseful and contrite."

1. The sentencing judge emphasised that the question of general deterrence loomed large in the applicant's case. Her Honour said:

"Members of the public have the right to feel safe and protected while using taxis, particularly late at night, often the only means of transport available. His offending behaviour constitutes a grave breach of trust owed to the members of the public. Passengers in taxi cabs have a rightful expectation that they will be conveyed home and that they will not be sexually assaulted on the way."

1. The sentencing judge made a finding of special circumstances and accordingly varied the statutory ratio between the non-parole period and the overall term. Her Honour also recognised the fact that the applicant has language difficulties and mental health issues will make his time in custody more onerous. Her Honour also recognised that the nature of his offence made it more probable than not that he will spend his time in custody in protection.

The appeal

1. In support of the first ground of appeal it was submitted on behalf of the applicant that her Honour failed to recognise that the plea spared the complainant the ordeal of giving evidence, a finding which it was submitted should have been reflected in the finding with respect to remorse and contrition. The sentencing judge said after defining the fact that a 10% discount was appropriate for the utilitarian value of the plea "no doubt the complainant was required to ready herself to give evidence at trial and of course that would have required her to relive her experience." It was submitted that it is apparent from this remark that her Honour did not recognise the fact that, although the victim was required to ready herself for trial, because the applicant ultimately pleaded guilty she was spared the need to give evidence.

1. I am not persuaded that the error has occurred. Having made the observation to which I have referred her Honour went on to say that she accepted that the plea demonstrated some contrition and, having heard from the applicant, she found him to be remorseful and contrite. To my mind that finding was open. The qualification that her Honour placed on the finding apparent from her remarks that the plea demonstrated "some contrition", appropriately reflected the fact that the plea came at a late stage and did not relieve the victim from reliving her experience in anticipation that she would have to give evidence.

1. The maximum penalty for the offence to which the applicant pleaded guilty is 14 years imprisonment. Although the applicant ultimately desisted from his attempt to penetrate the victim, he did not cease his activities when he was first asked to do so. Having kissed the victim and placed his tongue in her mouth, acts which were greeted with significant protest from the victim, he continued to impose upon her by touching her vagina. He not only did this on one occasion but when the victim had made plain her opposition to his actions he not only touched her vagina but made an attempt to penetrate her vagina.

1. Although her Honour found that the offence fell towards the lower end of the scale it nevertheless was a deliberate attempt by the applicant, which was persisted in, to have sexual intercourse knowing that the complainant was not consenting.

1. The applicant provided the court with reference to a number of cases where offenders were sentenced for similar offences. However, as may be expected the circumstances of each case differed, on occasions significantly. None of the cases to which we were referred involved a taxi driver who sought to take advantage of one of his passengers.

1. In R v Gretch NSWCCA, (11 December 1998, unreported) the offender pleaded guilty to one count of sexual intercourse without consent. The offender and the victim were previously in a domestic relationship and the offence occurred some time after the relationship had ended. During the course of an evening when the offender visited the victim's home he forced her on her back, removed her clothing and attempted penile penetration but was unable to obtain an erection. The offender was sentenced by this Court following a Crown appeal to 2 years imprisonment comprising a minimum term of 1 year and an additional term of 1 year. Being a Crown appeal, that sentence must have been at the lowest end of the available range.

1. In another case Raczkowski v R [2008] NSWCCA 152 the applicant returned to the home of his estranged wife and tied her up, saying he intended to engage in intercourse. He also threatened the victim with a pistol, which he pointed at her head. He subsequently untied his wife and removed her clothes but tied her to the bed post. In that position he attempted sexual intercourse but the victim prevented him from achieving penetration by kicking him with her unsecured leg. Following a struggle the applicant straddled the victim and ejaculated over her face. The offender was sentenced to a fixed term of 2 years.

1. In the present case the applicant sought to take advantage of the fact that the 19 year old victim had entrusted her safety to the applicant anticipating that she would be driven safely to her home. In circumstances where she had no capacity to avoid the applicant's advances he, knowing that she did not consent, made repeated efforts to assault her and attempted to penetrate her vagina. By his actions the applicant committed a gross breach of the trust placed in him, instilling both alarm and fear in the victim. Although, as her Honour found, the offence fell at the lower end of the range, being an attack by a taxi driver on a passenger it required a sentence of imprisonment that both punished the applicant and marked out his offence for other taxi drivers who may be similarly inclined.

1. Any one who travels in a taxi is entitled to expect that the journey will be completed without an unwanted sexual advance from the driver. The sentencing judge was conscious of the need to ensure that the applicant was appropriately punished and received a sentence that may operate to deter others from offending in a similar manner. Her Honour rightly determined that the applicant's behaviour constituted a grave breach of the trust owed by a taxi driver to members of the public.

1. I do not overlook the fact that the applicant has been diagnosed with a mental condition that may have impacted on his judgment at the time he committed the offence. Her Honour expressly had regard to this issue. However, the offence was sufficiently serious to require a custodial term and I am not persuaded that the sentence that her Honour imposed was manifestly excessive.

1. Although I would grant leave to appeal the appeal should be dismissed.

1. ROTHMAN J: I agree with McClellan CJ at CL.

1. ADAMSON J: I agree with McClellan CJ at CL.

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Amendments

01 February 2013 - corrected medium neutral citation

Amended paragraphs: coversheet

Decision last updated: 01 February 2013