Ali v R

Case [2010] NSWCCA 35 2 March 2010

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New South Wales

Court of Criminal Appeal

CITATION:	Ali v R [2010] NSWCCA 35
HEARING DATE(S):	18 December 2009
JUDGMENT DATE:	2 March 2010
JUDGMENT OF:	McClellan CJatCL at 1; Hulme J at 2; Johnson J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence following trial - sexual intercourse without consent and indecent assault (two counts) - taxi driver sexually assaults passenger - vulnerable victim - assessment of objective seriousness of s.61I offence - relevance of applicant's continued denial of guilt to assessment of prospects of rehabilitation and likelihood of reoffending - importance of general deterrence for offences by taxi driver against passenger - sentence not manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED :	R v Kowsar Ali [2008] NSWDC 319 R v Kowsar Ali [2008] NSWDC 318; 8 DCLR (NSW) 35 Mulato v R [2006] NSWCCA 282 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v PGM [2008] NSWCCA 172 McIntyre v R [2009] NSWCCA 305 R v Burton [2008] NSWCCA 128 The Queen v Olbrich [1999] 199 CLR 270 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 Alseedi v R [2009] NSWCCA 185 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 DCU v State Parole Authority of NSW [2006] NSWSC 526 Lee v State Parole Authority of NSW [2006] NSWSC 1225 R v Elyard [2006] NSWCCA 43 Davis v R [2009] NSWCCA 279 Markarian v The Queen [2005] 228 CLR 357 Jalloh v R [2009] NSWCCA 295 R v Smith (NSWCCA, 7 July 1988, Lee, McInerney and Loveday JJ, BC8801751) R v AS; Ex parte Attorney General (Qld) [2004] QCA 259 R v Cutts [2005] QCA 306 R v Way [2004] 60 NSWLR 168 R v Hibberd [2009] NSWCCA 20 R v Porteous [2005] NSWCCA 115 Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 Han v R [2009] NSWCCA 300 R v AEM [2002] NSWCCA 58
PARTIES:	Kowsar Ali (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/5359
COUNSEL:	Mr S Corish (Applicant) Ms N Noman (Respondent)
SOLICITORS:	Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	08/11/0298
LOWER COURTJUDICIAL OFFICER:	His Honour Judge Berman SC
LOWER COURT DATE OF DECISION:	14 November 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Kowsar Ali [2008] NSWDC 319

IN THE COURT OF CRIMINAL APPEAL
2008/5359

McCLELLAN CJ at CL
RS HULME J
JOHNSON J

2 March 2010

Kowsar Ali v R

Judgment

1 McCLELLAN CJ at CL: I agree with Johnson J.

2 RS HULME J: : I agree with Johnson J

3 JOHNSON J: This is an application by Kowsar Ali for leave to appeal against sentences imposed by his Honour Judge Berman SC following conviction by a jury upon one count of having sexual intercourse without consent contrary to s.61I Crimes…

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 Ali v R

Details

AGLC: Ali v R [2010] NSWCCA 35
Case: [2010] NSWCCA 35
Decision Date: 2 March 2010

CaseChat Overview and Summary

The case of Ali v R involved a taxi driver who was convicted of two counts of sexual assault, namely sexual intercourse without consent and indecent assault, against a vulnerable passenger. The appeal focused on the sentence imposed by the trial judge following the guilty verdict. The offender denied the charges throughout the trial and maintained his innocence on appeal. The High Court of Australia was tasked with assessing whether the sentence was manifestly excessive.

The central legal issues revolved around the assessment of the objective seriousness of the offence under section 61I, the relevance of the offender's continued denial of guilt to the evaluation of his prospects for rehabilitation and likelihood of reoffending, and the importance of general deterrence in cases involving a taxi driver who assaults a passenger. Additionally, the court considered the appropriate weight to give to the offender's denial of guilt in determining his prospects for rehabilitation and the likelihood of reoffending.

The High Court found that the sentence was not manifestly excessive. The Court concluded that the trial judge appropriately assessed the objective seriousness of the offence, taking into account the vulnerable nature of the victim and the offender's position of trust as a taxi driver. The Court also determined that the continued denial of guilt by the offender did not preclude a proper evaluation of his prospects for rehabilitation and likelihood of reoffending, as the trial judge had considered other relevant factors. Furthermore, the Court emphasised the importance of general deterrence in cases where a taxi driver sexually assaults a passenger. The High Court held that the sentence imposed by the trial judge was commensurate with the gravity of the offences and served the purposes of punishment, including general deterrence.

The Court did not order a new sentencing hearing but affirmed the sentence imposed by the trial judge. The appeal was dismissed, and the original sentence stood as appropriate and not manifestly excessive.

Orders