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

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.

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

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.

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.

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.

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…

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 Al Mosawe v The Queen

Details

AGLC: Al Mosawe v The Queen [2012] NSWCCA 275
Case: [2012] NSWCCA 275
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of Al Mosawe v The Queen, the applicant, Al Mosawe, appealed against the sentence imposed on him by the County Court. Al Mosawe was convicted of the attempted sexual assault of a passenger in his taxi. The primary issue for the court was the appropriate discount for the plea of guilty, specifically whether the 10% discount was sufficient in the circumstances. Additional considerations included the trauma spared to the complainant by not having to give evidence and whether the sentence was manifestly excessive. The court also needed to assess the necessity of the sentence in terms of general deterrence.

The court considered that the appropriate discount for a plea of guilty is generally between 10% and 25%. However, in this case, the court found that a 10% discount was insufficient. The court noted that the applicant's plea of guilty spared the complainant from the ordeal of giving evidence, which was a significant mitigating factor. Nevertheless, the court also recognised the need for the sentence to reflect the seriousness of the offence and to serve as a general deterrent. The court concluded that a 10% discount was insufficient to appropriately reflect the mitigating factors and the need for general deterrence.

The court allowed the appeal and ordered that the sentence be reduced. The specific details of the revised sentence were not provided in the text. The court found that the original sentence was manifestly excessive given the appropriate discount for the plea and the other mitigating factors. The court's decision underscores the importance of balancing the discount for a guilty plea with the need to impose a sentence that adequately reflects the seriousness of the offence and serves the purposes of general deterrence.

Orders