Alenezi v The King

Case •

[2023] NSWCCA 283

•

13 November 2023

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Alenezi v R [2023] NSWCCA 283
Hearing dates: 6 October 2023
Date of orders: 13 November 2023
Decision date: 13 November 2023
Before: Adamson JA at [1];
Basten AJA at [2];
Sweeney J at [59]
Decision:

(1)   Grant leave to the applicant to rely upon the notice of appeal filed on 31 July 2023.

(2)   Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 8 October 2021.

(3)   Dismiss the appeal.

Catchwords:

CRIME – appeal against sentence – one count of sexual intercourse without consent – above mid-range of objective seriousness – offender reckless as to consent – whether recklessness can support a finding of above the mid-range – whether sentencing judge failed to make findings in relation to mitigating factors – whether sentencing judge erred in refusal to rely on untested out-of-court statements – whether sentence manifestly excessive

CRIME – procedure – leave to appeal – out of time – explanation for delay required – obligation of solicitor to make inquiries

Legislation Cited:

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 Cited:

Ali v R [2010] NSWCCA 35

Ali v R [2014] NSWCCA 45

BM v R [2023] NSWCCA 68

Housev The King (1936) 55 CLR 499; [1936] HCA 40

Imbornone v R [2017] NSWCCA 144

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nand v R [2014] NSWCCA 293

Naveed v R [2019] NSWCCA 149

R v Ferguson [2022] NSWCCA 147

R v MAK 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; [2001] HCA 64

Category:Principal judgment
Parties: Sayer Hamoud Alenezi (Applicant)
Rex (Respondent)
Representation:

Counsel:
D S Roff / S Rumbewas (Applicant)
T Abdulhak (Respondent)

Solicitors:
Abbas & Co Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/344283
Publication restriction: Non-publication order as to identity of victim
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:

[2021] NSWDC 718

Date of Decision:
8 October 2021
Before:
Bennett SC DCJ
File Number(s):
2019/00344283

HEADNOTE

[This headnote is not to be read as part of the judgment]

Sayer Hamoud Alenezi (the applicant) sought leave to appeal his sentence in relation to a single count of sexual assault. The offence, under s 61I of the Crimes Act 1900 (NSW), was committed on 27 October 2019 at Woolloomooloo in Sydney. The applicant had penile-vaginal intercourse with a 22-year-old woman without her consent and was reckless as to her lack of consent. He entered an early plea to the charge. A further offence of penile/oral intercourse was taken into account on a Form 1.

From the early afternoon of 26 October to the early morning of 27 October, the victim had consumed significant quantities of alcohol. By 1.30am on 27 October (the day the offence took place), the victim was described as “really drunk”. The applicant approached the victim while she was speaking to a friend on her mobile phone and after walking away, he re-approached her, helped her to her feet and walked her along Oxford, Crown, and Palmer streets to a destination in Turner Lane. While there, the applicant put the victim on the ground in the gutter, removed her clothes and a tampon and had sexual intercourse with her. The CCTV footage showed that they were in the laneway for about 30 minutes before the applicant ran off with the victim’s wallet, only to return and throw the wallet at the victim, who was still lying on the ground.

The applicant received a discount of 25% for an early guilty plea and was sentenced on 8 October 2021 to imprisonment for 7 years and 6 months with a non-parole period of 5 years. The grounds of the proposed appeal were that the sentencing judge erred in:

(i)    assessing the objective seriousness of the offence as above midrange;

(ii)    failing to make findings as to the applicant’s remorse, risk of reoffending and prospects of rehabilitation, and

  1. imposing a manifestly excessive sentence.

The Court (Basten AJA, Adamson JA and Sweeney J agreeing) held, granting leave to appeal but dismissing the appeal:

As to ground 1 – assessment of objective seriousness

  1. There is no reason why recklessness as to consent could not support a finding of objective seriousness above the midrange. The assessment is evaluative and impressionistic, and may be reviewed on the basis of specific error or that the assessment was not open to the sentencing judge. The judge was entitled to have regard to all the circumstances of the offending, not only the state of mind of the applicant: [20]–[21].

BM v R [2023] NSWCCA 68 applied; Mulato v R [2006] NSWCCA 282 discussed

As to ground 2 – failure to make findings

  1. Remorse, risk of reoffending and prospects of rehabilitation are mitigating factors to be considered in determining a sentence, but only if they are “relevant and known to the court”. The onus is on the offender to establish mitigating factors and if the offender does not give evidence on sentence, error on the part of the sentencing judge will rarely be established: [23]–[24].

  2. Without being satisfied as to “true remorse”, it is unremarkable that the sentencing judge was unable to find that the applicant had good prospects of rehabilitation and was unlikely to reoffend: [25]-[26].

Ali v R [2010] NSWCCA 35; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 applied

  1. The contention that the sentencing judge did not address the applicant’s submissions with respect to the three matters was not made out, as demonstrated by his addressing character references from the applicant’s wife, mother, and cousins: [27].

  2. Untested reports of statements made out of court to third parties were not accepted. Having addressed the character references and psychologist’s report, the failure to make findings favourable to the applicant was open to the sentencing judge: [30]–[33].

Imbornone v R [2017] NSWCCA 144 referred to

As to ground 3 – manifest excess

  1. That the sentencing judge referred to the exploitation of the vulnerability of the victim four times did not demonstrate over-emphasis or inappropriate emphasis. The expression was used in appropriate contexts – for example in rejecting an assertion of opportunism – or favourably to the applicant in making a finding of special circumstances: [37], [39]–[42].

  2. Mention of the applicant’s “propensity”, to some extent, to exploit vulnerable women was done in the context of considering his possibility of reoffending. It was not an aggravating factor and having regard to it did not warrant criticism: [43].

  3. The JIRS statistics of offences under s 61I of the Crimes Act 1900 omitted relevant comparable cases from this Court. Having regard to the omitted cases the contention that the sentence was at the high end of the range for similar offences was not justified: [57].

Ali v R [2014] NSWCCA 35; Rajendran v R [2014] NSWCCA 113; Nand v R [2014] NSWCCA 293; Naveed v R [2019] NSWCCA 149; Rahman v R [2020] NSWCCA 13 referred to

JUDGMENT

  1. ADAMSON JA: I agree with Basten AJA.

  2. BASTEN AJA: The applicant, Sayer Hamoud Alenezi, seeks leave to appeal from a sentence of imprisonment imposed on him on 8 October 2021 for a single offence, committed on 27 October 2019 at Woolloomooloo, of having sexual intercourse with a young woman without her consent and knowing that she was not consenting, being an offence under s 61I of the Crimes Act 1900 (NSW). The offence involved penile-vaginal intercourse. In sentencing the offender, the sentencing judge (Bennett SC DCJ) took into account a similar offence (recorded on a Form 1) committed shortly prior to the principal offence, which involved the insertion of the offender’s penis into the victim’s mouth.

  3. After allowing a discount of 25% for an early plea of guilty, in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), the judge imposed a sentence of 7 years and 6 months with a non-parole period of 5 years. The sentence commenced on 11 November 2019. The non-parole period will therefore expire on 10 November 2024.

Extension of time

  1. Although a notice of intention to appeal was filed on 28 October 2021, a notice of appeal was not filed within the 12-month period during which time the notice of intention to appeal had effect. [1] The notice of appeal was in fact filed on 31 July 2023. Although the Director of Public Prosecutions did not oppose the application for leave to file out of time, made pursuant to rr 3.5(1)(b) and 3.5(5) of the Rules, the Court must be satisfied that an extension is appropriate in the circumstances of the case.

    1. Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Rules), r 3.1(3).

  2. The standard form seeking leave to file a notice of appeal after expiry of the filing period was completed by the applicant’s solicitor, who stated that the matter was first assigned to the firm by Legal Aid NSW on or about 13 December 2022. The statement of reasons for filing the notice out of time was deficient in significant respects. First, the solicitor stated:

“I cannot speak for any delay prior to the matter being assigned to our office. It appears as though the matter was with Legal Aid prior to it being assigned to me. I am unsure as to whether the matter was held by any other firm prior to Legal Aid NSW.”

  1. A solicitor who accepts an assignment out of time must know that it will be necessary to seek an extension of time and that reasons will be required to explain the delay. The solicitor is, therefore, duty bound to make enquiries as to the reasons for the delay up to the date on which the assignment was offered.

  2. Secondly, the solicitor explained part of the subsequent delay by reference to his own ill-health. However, the responsibility for timely filing of a notice of appeal lay with the firm, Abbas & Co Lawyers, and not with the individual solicitor required by that firm to have carriage of the matter.

  3. Thirdly, it was, apparently, a condition of Legal Aid that an advice on merits be obtained from counsel. However, there was no explanation as to why funding for counsel to provide a merit advice was not approved until 4 May 2023. Nor was there a satisfactory explanation for the further period of almost five months before the notice of appeal was filed.

  4. There is no suggestion that the applicant has been personally responsible for any part of the delay, but he would potentially be a victim of the delay were the application to succeed and his sentence to be reduced to a date shortly after, or even prior to the judgment, as has occurred on occasion. He has already completed four of the five years of the non-parole period imposed on him. In the present case, the proper course is to order that leave be granted to file the notice of appeal on 31 July 2023, being the date on which it was filed.

Grounds of appeal

  1. The proposed grounds of appeal, in the event that leave be granted, were as follows:

  1. His Honour erred in his assessment of the objective seriousness of the offence.

  2. His Honour erred in failing to make findings in relation to the applicant’s remorse; risk of reoffending; and prospects of rehabilitation.

  3. The sentence imposed is manifestly excessive.

  1. The sentencing judge supported his orders with a carefully structured and comprehensive statement of his reasons. As they are publicly available on Caselaw, there is no need to repeat or summarise them, except to the extent necessary to address the proposed grounds.

  2. Because the starting point for the sentence was a period of 10 years’ imprisonment, and because it is the first custodial sentence imposed on the applicant, it is appropriate to grant leave to appeal. However, for the reasons set out below, the appeal must be dismissed.

Ground 1: assessment of objective seriousness

  1. The act of intercourse which was the subject of the charge took place in the early hours of Sunday, 27 October 2019. The victim, then 22 years of age, had been consuming significant quantities of alcohol, including beer and vodka, since about 2pm on the Saturday afternoon. By 6pm or 7pm she was already intoxicated. Between 10.30pm and 1am she, with a group of friends, continued to drink at the Beresford Hotel at Surry Hills, from which they walked to the Courthouse Hotel at Taylor Square. At that time she was described as “really drunk”, swaying on the dance floor and constantly sitting down, standing up and trying to dance but being too unsteady on her feet.

  2. At around 1.30am, the victim left the Courthouse Hotel and obtained food at a nearby takeaway shop. CCTV footage showed her sitting on a paved ledge on Taylor Square from 1.35am to 2.17am. She could be seen at one point eating food and at other points speaking on her mobile phone. Between 1.45am and 2am she had a lengthy telephone conversation with a friend during which she sounded “really intoxicated”, was slurring her words and at one point vomited in some bushes. She declined her friend’s offer to pick her up.

  3. The victim then had a further conversation via Facebook with a friend in the USA, during which time the applicant approached her and spoke to her. The phone call dropped out at 2.09am.

  4. CCTV footage recorded the victim in Oxford Street at 2.18am leaning against a wall and speaking on the phone. At 2.21am she began to sit on the ground and in doing so fell forward onto her knees, before sitting on a step. At 2.27am the applicant walked past the victim, and then returned and sat down beside her while the victim continued to talk on her mobile phone. At about 2.30am the applicant got up and walked away, then approached her and again sat close beside her. At 2.33am the applicant stood up and used his arm to assist the victim to her feet and they walked in a northerly direction along Oxford Street. They proceeded along Crown Street and Palmer Street. The statement of agreed facts continued at par 20:

“The victim recalls that they stopped twice while they were walking. The first time they stopped it was on a step and there were street lights. The [applicant] kissed the victim, which made her freeze. She states, ‘I was so scared, but I was frozen’. … She states ‘I was so intoxicated, I could not see straight, and I could not walk properly’. She states that the second time they stopped was when the offence took place.”

  1. The applicant walked the victim around a corner into Turner Lane, Woolloomooloo, put the victim on the ground in the gutter and removed her underwear. He then shifted her body so that she was lying flat, took off his pants and put his penis in her mouth. (This constituted the first offence of intercourse without consent which was dealt with on a Form 1.) The applicant then had penile/vaginal intercourse with the victim. He lifted her left leg over her head, which she found very uncomfortable and placed the full weight of his body on her. She stated that she was frozen, could not move, was scared and was in pain. At some point the applicant removed the victim’s tampon, which was later found in Turner Lane. The applicant’s conduct caused her pain not only in her vagina, but also her lower back. She thought that it went on “for a long time” perhaps “about 10-15 minutes”, but the CCTV footage showed that they were in the laneway for approximately 30 minutes. The statement of agreed facts continued at par 31:

“At the end, the victim remembers she was just lying there and the offender got up and left. The offender took the victim’s wallet, ran off, and then came back and threw the wallet at the victim when she was still lying on the ground with her back on the gutter. The wallet hit the victim on her shoulder/chest area.”

That occurred at about 3.25am.

  1. The judge expressly accepted the prosecutor’s submissions, that “the principal offence falls above midrange of objective seriousness for the reasons that she has advanced”: at [220]. The judge rejected a submission on behalf of the applicant that the offence fell “well below the middle range of objective seriousness”: at [208]. He accepted that there were gradations of seriousness depending on the state of knowledge of the offender and that recklessness as to consent, which was the agreed basis upon which the applicant was to be sentenced, fell below a consciousness of lack of consent but perhaps above a belief as to consent, for which there were no reasonable grounds: at [210]. The judge’s assessment continued:

“211   Accepting the merit of that submission it is not only that gradation which is brought to account when assessing the objective gravity of such misconduct. Recklessness itself will embrace degrees of perception and if it was the offender's state of mind, as he admits this by way of the agreed statement of facts, as was put to me in the course of submissions, the question then arises as to when that state of mind arose. It was suggested to me that his knowledge and perhaps the level of recklessness at its highest does not or did not arise until after the victim and the offender arrived at the scene of the offences.

212 I do not accept that submission. I do not accept the submission that this offence falls within the low-range of objective seriousness. I do not accept that this was properly described as an opportunistic offence. I accept the aggravating factors identified by the Crown that the victim was vulnerable and was so by her state of intoxication from the moment when the offender came upon her, but was increasingly vulnerable by the time he had walked her to Turner Lane where he committed these crimes. This was a dark alley way where she was ultimately left without clothing while he fled, after he returned to throw her wallet at her. Thus s 21A(2)(l) Crimes (Sentencing Procedure) Act applies.

213 The Crown has submitted that the victim suffered substantial harm by reason of the matters raised in her victim impact statement and the supporting documents. I am invited to s 21A(2)(g). I accept that the harm she has suffered as a consequence of these events is significant but I do not come to the view that as an aggravating factor it should be brought to account. However all that she has said I have included it in the factual matrix upon which to assess the punishment that the offender must face.”

  1. Returning to the finding at [220] noted above, the judge rejected the submission made on the applicant’s behalf that his behaviour was “opportunistic” and continued:

“221   Although in light of the premise upon which the offender offered his plea and accepted by the Crown, that I must determine sentence upon the basis that his knowledge of the absence of consent was in terms of recklessness, it does not follow that this encounter should be seen to be a shared moment up until the time when it is suggested, at least by implication, that the victim did not withhold consent until the point of her unbearable discomfort. I find that the offender selected this vulnerable young woman for sexual exploitation, perhaps motivated by the state of mind that evolved after his argument with his wife against the background of his sense of isolation and loneliness. I am satisfied that he did not care one way or another whether or not the victim would consent.

222   He relies also upon the opinions that are given in the reports from which I have read in the reduction of his moral culpability, in addition to what is said to be his impaired vision which it was suggested should also attract a measure of sympathy as I understood what was said on his behalf. I do not accept that submission. As I said I find the offender exploited this vulnerable young woman. He was 16 years her senior. He encountered her in her intoxicated state as she sat on a step at the front door of a premise on Oxford Street. He took care to look about as he noticed her, walk past her and returned to her to engage her in conversation in which he asserts there was capacity to communicate, although limited due to his lack of English.

223   He walked her from that location a considerable distance to a lane way in Woolloomooloo where he placed her in the gutter before removing her clothing, her tampon, inserting his penis into her mouth and then her vagina until ejaculation, which he was careful enough to achieve outside of her body. This was his assertion consistent with the subsequent forensic procedures carried out in the course of investigation of the victim's body. Afterwards he fled the scene, returned to throw the victim's wallet at her. He again fled, leaving her in the gutter, ran off up William Street and into the city where he caught transport home.”

  1. There is no doubt that, in these passages, the judge placed significant weight upon the state of mind of the applicant. However, the submissions on behalf of the applicant in this Court went little further than to assert that recklessness, not being the highest of the three levels of understanding of lack of consent, could not support a finding of moral culpability above the midrange of objective seriousness. The answer given by the respondent, correctly, was two-fold, namely (i) that the applicant’s state of mind was only one factor in assessing objective seriousness and (ii) there is no reason in principle why recklessness could not support a finding of objective seriousness above the midrange.

  2. As a matter of long accepted principle, the objective seriousness of particular offending is an essentially evaluative and impressionistic judgment with which an appeal court will not readily interfere. That proposition was recently restated in BM v R. [2] However, I do not agree with the statement in that case that an appellate court “should not intervene unless specific error of the sort referred to in House v The King” has been established. Neither Mulato v R [3] nor R v Ferguson,[4] referred to in BM, is authority for that proposition. Indeed, in Mulato at [37], Spigelman CJ considered whether the particular characterisation of the offence by the sentencing judge was “open”. That language reflects, not the passage in House v The King [5] which identified specific errors, but rather the passage which identified a possible error-inferred-from-outcome basis of intervention. In that respect, it more closely resembles the third ground relied upon here, namely that the sentence was manifestly excessive. However, accepting that error of either kind identified in House may be available, no such error is apparent in the present case. The finding as to objective seriousness was open to the sentencing judge, and his reasons for making the finding revealed no specific error. Ground 1 should be rejected.

Ground 2 – failing to make findings as to remorse; risk of reoffending; and prospects of rehabilitation

2. [2023] NSWCCA 68 at [44]-[46] (Walton J, Mitchelmore JA and Adams J agreeing).

3. [2006] NSWCCA 282 at [37] and [45]-[46].

4. [2022] NSWCCA 147 at [59].

5. (1936) 55 CLR 499 at 505; [1936] HCA 40.

  1. There was a degree of confusion in the applicant’s submissions with respect to ground 2. The ground itself was formulated as the failure to make findings with respect to the three matters as to which, it was implied, findings were required in the proper exercise of the sentencing function. However, in the written submissions, the ground was formulated, at least in part, as a failure to respond to the applicant’s submissions with respect to those matters. Those submissions were then repeated as a basis for this Court to interfere with the sentence.

Failure to make findings

  1. As to the first approach, it is undoubtedly true that the three matters are identified in s 21A(3) as “mitigating factors, which are to be taken into account in determining a sentence”, namely that the offender is “unlikely to reoffend” (par (g)), that the offender has “good prospects of rehabilitation” (par (h)), and that the offender has shown “remorse” (par (i)). The applicant submitted that the three factors were interconnected and might be dealt with “compendiously”. However, it should be noted that remorse is only a mitigating factor for the purposes of s 21A(3)(i) if “the offender has provided evidence that he or she has accepted responsibility for his or her actions” and “has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage”.

  2. The factors identified in s 21A may properly be described as material, and possibly mandatory, considerations so that error might be demonstrated if they were disregarded. However, as s 21A(1) expressly states, it is only those factors that are “relevant and known to the court” which are required to be taken into account. The onus is on the offender to establish mitigating factors, and it will rarely be open for the offender to complain of a failure on the part of a sentencing judge to make a favourable finding. That is for three reasons. First, each of the concepts is imprecise and involves matters of degree. Secondly, two are forward-looking and can usually be speculative at best. The third (remorse) is often difficult to establish because offenders usually regret past conduct once penal consequences are, or are about to be, visited upon them, a matter which may be difficult to distinguish from remorse. Thirdly, much will depend upon the evidence. There will rarely be error on the part of the sentencing judge in failing to make a favourable finding on such matters if the offender has not given evidence at the sentencing hearing. [6]

    6. Imbornone v R [2017] NSWCCA 144 at [57] (Wilson J; Hoeben CJ at CL and R A Hulme J agreeing) set out at [29] below.

  3. In Ali v R,[7] Johnson J noted, with respect to a similar assertion of error in failing to make positive findings that the offender was unlikely to reoffend and had good prospects of rehabilitation, that the onus lay on the offender to demonstrate a mitigating factor of that kind. He continued, referring to R v MAK,[8] that this Court had stated that “remorse will be a major factor in determining whether an offender is unlikely to reoffend and had good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made”. [9]

    7. [2010] NSWCCA 35.

    8. [2006] NSWCCA 381; 167 A Crim R 159 at [41].

    9. Ali at [47].

  4. As will appear, the sentencing judge was not satisfied as to “true remorse”. There was, therefore, no basis for this Court to intervene with respect to the complaint of failure to make findings.

Failure to address the applicant’s case

  1. The alternative proposition, that the judge did not address the applicant’s case on remorse, was untenable. The judge expressly referred to character references (i) from the applicant’s wife stating that the applicant had “expressed his regret for his actions and the impact it has caused upon their family”, and asserting that “he understands the nature of his actions and accepts responsibility for what he has done and is taking positive steps to address his offending” and that he had “confided in her his remorse”: at [158]; (ii) from the applicant’s mother saying that he had expressed “sincere remorse” and guilt on numerous occasions; and (iii) from his cousins stating that they believed him to be “genuinely remorseful”: at [173]. The judge also referred to a psychologist’s report noting that the applicant had expressed “regret and remorse”: at [169].

  2. In discussing submissions made on behalf of the prosecution, the judge noted that “the reports provided on behalf of the offender and character material depended in large measure upon the truth and accuracy of the attributions upon which the opinions were offered” which included “past life history and demographics generally and explanations attributed to the offender regarding the misconduct upon which the prosecution was brought”: at [194]. The judge accepted matters relating to “demography”, including the difficulties the applicant had faced in Kuwait and Iraq but continued:

“196   However with regard to the attributions dealing with the offending behaviour and the circumstances surrounding it I have taken the guidance offered by Smart AJ and subsequently by Wilson J, particularly in light of what must have been lies told to the police in the course of the interview in which the offender participated.”

  1. The reference to the guidance provided by Wilson J was to the following passage in Imbornone:

“57   This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities:

(1)   Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] – [59].

(2)   Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] – [25].

(3)   It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33].

(4)   If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]–[19].

(5)   Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, ‘to treat this evidence with anything but scepticism represents a triumph of hope over experience’: R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].”

  1. Against that background, the statement that he had taken the guidance offered by Wilson J clearly implied that the judge was not affirmatively satisfied by the untested reports of statements made out of court to third parties. That implication is supported by describing the prosecutor’s submissions with respect to special circumstances as, “reminding me that lack of remorse and poor prospects of rehabilitation require increased weight to be attributed to the need for protection, and militate against finding of special circumstances”: at [217]. Clearly, the judge did not accept the statements of remorse attributed to the applicant in character references and the psychologist’s report.

  2. It is also apparent that the judge was not satisfied of the applicant’s good prospects of rehabilitation, whatever that might involve. Nevertheless, the judge found:

“227   I am satisfied that deterrence of the offender and the need [for] protection of the community attract less … significance in light of what I accept to be the offender's desire to rehabilitate and which it is said he has been attempting to achieve, albeit with the challenging circumstances in custody.

228   It remains however that in my judgement a sentence of imprisonment must be imposed with a significant reduction in the custodial component to reflect special circumstances which I am satisfied warrant a longer period on parole, including that this is his first time he has been incarcerated, there is the need to encourage his rehabilitation, and the circumstances of his family which must add to the punishment he would otherwise experience in custody without those concerns.”

  1. As to the likelihood of reoffending, the judge referred to a passage in a report prepared by a consulting psychiatrist, Dr Furst, noting that it dealt with “the risk of reoffending using the Static-99R coding form”, which revealed that the applicant was “said to be at the average risk of re-offending compared with other male sex offenders”: at [151]. There was no suggestion that the judge did not accept that finding, but it can have provided no significant comfort to the applicant.

  2. In short, the judge did not fail to have regard to the material put forward by the applicant in relation to these factors: rather, he did not make findings favourable to the applicant, a result which was not open to criticism. Ground 2 must be rejected.

Ground 3 – manifest excess

  1. The applicant’s written submissions relied on three matters in support of a challenge to the length of the sentence. These were:

  1. acceptance of grounds 1 and 2;

  2. over-emphasis given to the applicant’s “exploitation” of the victim; and

  3. sentencing statistics showing that the sentence was “at the higher end of the range”.

  1. The first matter can be dismissed: grounds 1 and 2 have been rejected.

Giving over-emphasis to the applicant’s “exploitation” of the victim

  1. As to the second matter, the complaint was that the judge had given “a heightened level of importance” to his view that the applicant had “exploited the victim’s vulnerability”, so as to displace the agreed fact that the applicant had been reckless as to whether or not she was consenting.

  2. The formulation of this challenge was unpromising, an impression confirmed by further examination. The applicant did not challenge the finding as to the victim’s vulnerability, nor that it was an aggravating factor upon which the judge was entitled to rely. The fact that the judge referred to this factor on four occasions did not demonstrate “overemphasis”, unless the occasions were inappropriate.

  3. The first passage was with respect to an opinion proffered by Dr Furst in his report that:

“The offending in question was opportunistic, Mr Alenezi taking advantage of a vulnerable and heavily intoxicated young woman, previously unknown to him, under the initial guise of helping her.”

Of this the judge stated:

“149   I attribute little weight to that paragraph. I do not find that this offending was opportunistic. It was exploitative, the offender taking advantage of the vulnerable circumstances of this victim.”

There could be no error in this form of expression in rejecting an opinion, relied upon by the applicant, that his offending was “opportunistic”.

  1. The second passage relied upon as demonstrating overemphasis involved a rejection of the proposition that recklessness as to consent only arose after the assault commenced, so that “this encounter should be seen to be a shared moment up until … the point of her unbearable discomfort”: at [221]. Rather, the judge found that the applicant had selected “this vulnerable young woman for sexual exploitation” at a time when he saw her, clearly inebriated, at Taylor Square and, purporting to assist her, walked her down Oxford Street, into Palmer Street and then into a dark laneway. The finding that he was reckless as to her willingness to engage in sexual intercourse commenced at an early point in time, when he “selected” her for sexual exploitation. The use of the language in that context was entirely apt.

  2. Thirdly, in rejecting a submission that the applicant’s moral culpability should follow from his personal circumstances which evoked a measure of sympathy, the judge stated:

“222   … I do not accept that submission. As I said I find the offender exploited this vulnerable young woman. He was 16 years her senior. He encountered her in her intoxicated state as she sat on a step at the front door of a premise on Oxford Street. He took care to look about as he noticed her, walked past her and returned to her to engage her in conversation in which he asserts there was capacity to communicate, although limited due to his lack of English.”

Again, reliance on her vulnerability and his exploitation of it was entirely appropriate in the context.

  1. Fourthly and finally, reliance was placed upon the following passage in the judgment:

“229 … [the applicant] is in need of an appropriate measure of supervision for a period greater than what would be provided by the application of s 44 Crimes (Sentencing Procedure) Act 1999 to address the propensity he has demonstrated at least to some extent in the two episodes of offending with which he has been charged, for the unacceptable exploitation of young women in vulnerable circumstances.”

  1. The reference to s 44 of the Sentencing Procedure Act identified the obligation to impose a sentence involving a non-parole period and a balance of term which “must not exceed one-third of the non-parole period” unless the Court decides there are special circumstances for it being more: s 44(2). Given that it would be inappropriate to increase the term of the sentence to allow for a longer period of supervision, a finding of special circumstances, which was given significant effect in the present case, reduced the period of mandatory custody. In other words, this observation in relation to exploitation of young women in vulnerable circumstances was made in a context which had a favourable consequence for the applicant.

  2. The applicant took issue with the suggestion that he had a “propensity” to exploit vulnerable young woman, based on an act of indecency of which he had been convicted in December 2017, together with the charge the subject of the sentencing hearing. The criticism was, however, without substance. The term “propensity” was qualified by the words “at least to some extent in the two episodes of offending” and was not some form of aggravating factor. Further, the context suggested a concern the sentencing judge held as to the possibility of reoffending. Neither of these matters warranted criticism.

  3. It follows that the second basis of challenging the length of the sentence lacks substance.

Reliance on JIRS statistics and comparable cases

  1. The third matter relied upon the Judicial Information and Research System (JIRS) statistics prepared by the Judicial Commission with respect to offences under s 61I of the Crimes Act. The criteria relied upon involved one individual, one offence only, a Form 1 matter, priors of a different type and a guilty plea. The period was from 24 September 2018 to 30 September 2022. There were a total of 12 cases, of which only one involved a non-parole period in excess of 3 years 6 months, namely one of 4 years 6 months. With respect to the term of the sentence involving a principal offence only, and otherwise identical characteristics, the higher sentence was a term of 6 years imprisonment, again for one offence. It will be necessary to return to these statistics after considering the comparable cases.

  2. The applicant also supplied the Court with brief summaries of 124 cases of sexual intercourse without consent where the victim was aged 16 years or older under s 61I of the Crimes Act. The record commenced in 1991, long before the standard non-parole period of 7 years for such offences was enacted in February 2003. The applicant’s counsel submitted that the schedule suggested that “the sentence imposed is at the higher end of the range for offences of its type”. However, as the respondent submitted, that may be so, but it goes little if any way to establishing manifest excess.

  1. The respondent relied upon three decisions in this Court, two of which the sentencing judge had been taken to in the course of submissions. In each case a challenge to the severity of the sentence was rejected by this Court.

  2. The first, Nand v R,[10] involved an incident at Newtown railway station in which the offender had oral and vaginal intercourse with an 18-year-old, heavily intoxicated, woman seated on a bench at the station. Charged with two offences under s 61I of the Crimes Act, he was sentenced for the first to imprisonment for 10 years 6 months with a non-parole period of 7 years 6 months, and on the second to a similar term with a non-parole period of 7 years. The total sentence imposed was 11 years with a non-parole period of 7 years 6 months, there being no accumulation of the non-parole periods. Although manifest excess was not a ground of appeal, Schmidt J (with the agreement of Gleeson JA and Bellew J) stated:

“10   Firstly, it must be considered that the overall sentence of 11 years with a non-parole period of 7 years, 6 months was not a heavy sentence for the applicant’s offences, given their gravity, which was high.”

10. [2014] NSWCCA 293.

  1. The sentences in Nand were longer than the pre-discount starting point adopted by Bennett DCJ, although Mr Nand was on parole at the time of the offending and had a significant criminal record.

  2. In the second case, Rahman v R [11] this Court held that a sentence of imprisonment for 6 years with a non-parole period of 4 years and 6 months, including a 25% discount based on an early plea of guilty, was not unreasonable or plainly unjust.

    11. [2020] NSWCCA 13 (Beech-Jones J; Macfarlan JA and Adamson J agreeing).

  3. Mr Rahman, then 36 years of age, and his younger victim then 24 years of age, worked at a restaurant in Sydney. They had been drinking with fellow workers after their shift. At about 3.30am the offender pressured the victim to go back with him to his communal house in Strathfield. During the night, the victim woke to find the offender taking her clothes off and, while she was partly asleep and in a dazed and confused state, he had intercourse with her. The penile/vaginal intercourse was the subject of the charge, with an episode of cunnilingus taken into account on a Form 1.

  4. Beech-Jones J in Rahman had regard to a number of earlier decisions, including Nand (noted above) and Ali v R. [12] Mr Ali was an Uber driver who had sexual intercourse with a passenger. The victim was an 18-year-old woman who was significantly intoxicated, was drifting in and out of sleep during the taxi trip and at one stage vomited out of the window, before being driven to a back street. The offender had stopped the vehicle, moved the victim into the back seat, removed her underclothes including a tampon and had vaginal sexual intercourse until ejaculation, despite the clearly expressed lack of consent on the part of the victim. The offender was 22 years of age and had no prior criminal history. Having been convicted by a jury, he was sentenced by the trial judge to a term of 10 years and 8 months, with a non-parole period of 8 years, a sentence which was found to be subject to “Muldrock error”, that is, giving undue weight to the standard non-parole period. The sentencing judge had assessed the objective seriousness of the offending as above the midrange, a finding with which this Court did not interfere.

    12. [2014] NSWCCA 45 (Leeming JA, Button J and R S Hulme AJ).

  5. Two aspects of Ali are significant. First, there had been an appeal in 2010,[13] before the decision of the High Court in Muldrock v The Queen [14] changed the approach to standard non-parole periods. In 2010, this Court upheld the sentence and dismissed a challenge by Mr Ali. Secondly, in 2014 the Court was required to revisit the sentencing as a result of the decision of the High Court in Muldrock and a concession by the Director that an incorrect approach had been adopted by the sentencing judge with respect to the standard non-parole period. This Court then determined that a lesser sentence was warranted, namely a sentence of 8 years 8 months on the s 61I offence, with a non-parole period of 6 years and 6 months. However, the Court was able, in 2014, to take into account events subsequent to the original sentencing. These proved decisive in the reduction in sentence, as explained by Leeming JA:

“9   Contrary to the Crown’s submissions, a less severe sentence is warranted in law. The sentencing court in 2008 saw a man who displayed no remorse, and who for that reason did not have good prospects of rehabilitation, and who might re-offend in the future. The position in 2014 is quite different. The mitigating factors are material.”

Ali thus provides no basis to find the present sentence manifestly excessive.

13. Ali v R [2010] NSWCCA 35.

14. (2011) 244 CLR 120; [2011] HCA 39.

  1. In Naveed v R,[15] this Court dealt with an appeal from a sentence imposed on another Uber driver who took advantage of the intoxicated state of a passenger to have vaginal intercourse with her on the back seat of the vehicle. The sentencing judge found that the conduct was in the “upper or top band of the middle range” of objective seriousness, a finding with which this Court did not interfere. [16] On appeal, the sentence of imprisonment for 9 years with a non-parole period of 6 years and 4 months was found not to be manifestly excessive.

    15. [2019] NSWCCA 149 (Davies J, Hoeben CJ at CL and R A Hulme J agreeing).

    16. Naveed at [70].

  2. In Rahman, after referring to Ali, Nand and Naveed, together with a fourth case, Rajendran v R [17] in which the Court had dismissed an appeal against a sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years, Beech-Jones J observed:

“38 These four cases indicate that the decisions relied on by the applicant do not provide any support for his complaint of manifest excess. To the extent that they and the other cases relied on illustrate any ‘unifying principle’ it is that with offences under s 61I committed by an offender upon a victim where there is no pre-existing relationship between them, then a custodial sentence of significant length within an otherwise reasonably wide range will almost invariably be imposed, even after allowance for the offender’s good character, remorse and reasonable prospects of rehabilitation.”

17. [2014] NSWCCA 113.

  1. The reference to “unifying principle” is taken from the observation of the High Court in Wong v The Queen [18] to the effect that a review of sentences imposed in other cases is “useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal”.

    18. (2001) 207 CLR 584; [2001] HCA 64 at [59] (Gaudron, Gummow and Hayne JJ).

  2. Kirby J, a member of the majority in Wong, quoting Mason J in Lowe v The Queen,[19] noted that the principle of consistency in sentencing and the need to limit disparity and inconsistency reflects “a fundamental element in any rational and fair system of criminal justice”. [20] However, the difficulty is to identify when interference with the discretionary judgment exercised by a sentencing judge is appropriate and when it is not. The analysis of comparable cases in Rahman, and that set out above, appear to demonstrate a serious weakness in the JIRS statistics relied upon by the applicant. The “range” which may be derived from the statistics provided indicates that the filters imposed have excluded a number of cases which provide a reasonable basis of comparison. Once the statistics are put to one side, there is no justification for interfering with the sentence imposed in the District Court. Ground 3 must be rejected.

    19. (1984) 154 CLR 606 at 609; [1984] HCA 46.

    20. Wong at [89].

Orders

  1. In these circumstances, the Court should make the following orders:

  1. Grant leave to the applicant to rely upon the notice of appeal filed on 31 July 2023.

  2. Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 8 October 2021.

  3. Dismiss the appeal.

  1. SWEENEY J: I agree with Basten AJA.

**********

Endnotes

Decision last updated: 13 November 2023

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